The difference between swearing and affirming your evidence

11 March
Family Law General

Whenever you appear as a witness in a courtroom or file an affidavit or statutory declaration with the Court, including in the Federal Circuit and Family Court, you will likely be asked: “Are you swearing or affirming?” If you’ve ever been left stumped by the question, or you’re just wanting to know the legal difference between swearing your evidence or affirming your evidence, read on.

What does it mean to swear or affirm?

‘Swearing’ refers to taking an oath by God on the Bible or other religious text that you are telling the truth.
‘Affirming’ refers to a declaration that you are telling the truth and does not have a reference to religious beliefs.

Both swearing and affirming your evidence carry the same weight and have no difference in legal consequences.

What’s the difference between swearing and affirming your evidence?

Swearing refers to taking a religious oath. If a person believes in God or another religious deity or supernatural being, they can swear by their God that they are telling the truth. To swear evidence, a person will hold the Bible or other religious text in their right hand and say a promise by their God that they are telling the truth in the witness of their God.

A person giving evidence in Court will say words to the effect of ‘I swear that the evidence I give is true, so help me God’.

Affirming the evidence which you give has the same legal effect as an oath sworn by the Bible or other religious text, but it does not refer to God or have any religious connection. In essence, an affirmation is a declaration of truth that the contents of your evidence or any legal document are correct, accurate and true.

When making an affirmation, an authorised witness will ask a question to the effect of: ‘Do you solemnly and sincerely and truly declare and affirm that the contents of this affidavit are true and correct to the best of your knowledge and belief?’. As the person giving the evidence or attesting to the accuracy of a document, you will then respond by saying: ‘I do’.

Which option should I choose?

Any person may choose to take an affirmation instead of an oath (swearing). It is entirely up to each individual. Ultimately, whichever way you choose to declare the truth of the contents of your evidence, there is no legal difference. Courts will not treat evidence sworn, any differently to evidence affirmed.

Both swearing and affirming carry the same weight and have the same legal consequence, and both require you to declare the evidence you give is truthful. The only tangible difference is the religious component. If a person has religious beliefs, they will generally take an oath and swear the truth or their evidence. Where a person does not have any religious beliefs, they will take an affirmation.

How can a family lawyer help?

If you would like to discuss your situation in more detail, you can book a free no obligation phone consultation with one of our lawyers. We assist separated couples across Australia with all aspects of separation and family law.