Statutory Declaration vs Affidavit — Which Do You Need?

Both statutory declarations and affidavits are formal legal statements where a person declares that certain facts are true. They are similar in many ways, but there are important differences in when each is used, who can witness them, and their legal standing. This guide explains the distinctions so you know which one you need.

What Do They Have in Common?

Both statutory declarations and affidavits share key characteristics:

• Both are formal, written statements of fact
• Both carry legal consequences for false statements
• Both must be made in the presence of an authorised person
• Both are used to formally put facts on the record

What Is a Statutory Declaration?

A statutory declaration is a written statement of fact made solemnly and sincerely under the Statutory Declarations Act 1938. The declarant does not swear an oath on a religious text; instead, they make a solemn declaration that the contents are true.

• Legal basis: Statutory Declarations Act 1938
• Form of words: "I [name] do solemnly and sincerely declare..."
• Who can witness: A practising solicitor, Commissioner for Oaths, Peace Commissioner, or Notary Public
• Common uses: Change of name, confirmation of facts (identity, address, relationship), applications to government bodies, insurance claims, land registry matters
• Penalty for false declaration: It is a criminal offence to make a false statutory declaration

What Is an Affidavit?

An affidavit is a written statement of fact that is sworn under oath (or affirmed) before an authorised person. The key distinction is the oath — the deponent swears on a religious text (or affirms without religious element) that the contents are true.

• Legal basis: Common law and various statutes
• Form of words: Sworn: "I swear by Almighty God that this is my name and handwriting and that the contents of this affidavit are true." Affirmed: "I [name] do solemnly and sincerely and truly declare and affirm..."
• Who can witness: A practising solicitor, Commissioner for Oaths, or Notary Public (note: Peace Commissioners can not administer oaths for affidavits)
• Common uses: Court proceedings, probate applications, family law matters, property disputes, any matter where evidence is required for court
• Penalty for false oath: Perjury — a serious criminal offence

Key Differences

• Oath vs declaration: Affidavit = sworn under oath. Statutory declaration = solemn declaration (no oath).
• Court use: Affidavits are used as evidence in court proceedings. Statutory declarations are typically for administrative or non-court purposes.
• Who can witness: Both can be witnessed by solicitors, Commissioners for Oaths, and Notaries Public. Only statutory declarations can also be witnessed by Peace Commissioners.
• Formality: Affidavits are generally considered more formal due to the oath.
• Penalty: Both carry criminal penalties for false statements, but a false affidavit constitutes perjury — one of the most serious offences relating to the administration of justice.

Which Do You Need?

You Need an Affidavit When:

• The document is for use in court proceedings
• A court or legal process specifically requires an affidavit
• You are applying for probate (Grant of Probate or Letters of Administration)
• Family law proceedings require sworn evidence

You Need a Statutory Declaration When:

• You need to confirm facts for administrative or official purposes
• A government body, institution, or company requires a statutory declaration
• You are declaring a change of name, confirming identity, or making a declaration of trust
• The requesting party asks for a "stat dec" or "statutory declaration"

If you are unsure, check the instructions from the requesting party. They will usually specify which type they need.

Frequently Asked Questions

What is the main difference between a statutory declaration and an affidavit?

An affidavit is sworn under oath; a statutory declaration is a solemn declaration. Affidavits are typically for court use; statutory declarations for administrative purposes.

Can a Peace Commissioner witness an affidavit?

No. Peace Commissioners can witness statutory declarations but cannot administer the oath required for an affidavit.

Which costs more?

The cost is typically similar for both, as the notary or solicitor performs a comparable service. Fees depend on the complexity of the document.

Can a Notary Public do both?

Yes. A Notary Public can witness statutory declarations and administer oaths for affidavits. Hugh Phelan is available at 021-489-7134.

Need a Statutory Declaration or Affidavit?

Contact Hugh Phelan's office. Call 021-489-7134 or email info@phelansolicitors.com.