Certified True Copy of an Affidavit: What a Notary Can Issue

An affidavit that has already been sworn is a finished document. Getting a certified copy of it is a different act from swearing one, and it answers a different question. Before anything else, it is worth being sure which of the two the receiving authority is actually asking for — because a certified copy of an old affidavit is often not what they want at all.

And if a certified copy is what they want, the most common mistake is sending the affidavit without its exhibits.

Copy of a sworn affidavit, or a new sworn statement?

Two requests sound alike:

• "A certified copy of your affidavit." You already swore an affidavit — usually for Australian proceedings — and a foreign court, authority or lawyer wants to see it. The notary certifies a copy of that existing document.
• "An affidavit, notarised." The recipient wants you to swear a statement now, in front of the notary, for their purposes. That is covered on the separate page on notarising an affidavit.

The difference matters. An affidavit sworn for a family law matter, a probate application or a commercial dispute was written for that proceeding, in that court's format, about the facts as they stood then. A foreign authority asking for evidence of something today usually wants a fresh statement addressed to them. A certified copy of an old affidavit, however carefully certified, does not become a new sworn statement.

Ask the recipient which one they mean, in writing, before booking.

The exhibits are part of the affidavit

Affidavits routinely annex documents — contracts, emails, bank records, photographs — marked as exhibits and usually introduced by an exhibit cover sheet signed by the person who took the oath. The affidavit refers to them by their exhibit marks: "annexed and marked A is a copy of…".

A copy of the affidavit without the exhibits is not a complete copy. The notary certifies a copy as true and complete, so either:

• the whole document, affidavit and every exhibit, is copied and certified; or
• the certificate states clearly that it is a copy of the affidavit only, excluding the exhibits.

The second is sometimes acceptable and sometimes not. A foreign court reading "see exhibit C" with no exhibit C attached will usually ask for it. Exhibits can be long — bring everything and let the recipient's requirements decide what is copied, rather than trimming at home.

Which document counts as the original

The notary must sight an original. With affidavits that is less obvious than it sounds:

• If the affidavit was filed in court, the court usually holds the filed version. What you have may be a copy stamped by the registry, or an unstamped copy. The court may be able to supply a sealed or certified copy from its file, and for some purposes that is a better document than a notarial copy — ask the registry.
• If the affidavit was never filed, the signed and sworn original may be with you or your lawyer.
• An unsigned version — the draft your lawyer emailed you, or the file saved on your computer — is not the sworn affidavit. A certified copy of it is a certified copy of a draft.

A notary cannot certify a copy from someone else's photocopy, a scan, or a copy already certified by a Justice of the Peace. Bring the sworn original or a court-sealed copy.

What the notary is not confirming

Certifying the copy says the copy matches the document produced. It says nothing about:

• whether the facts in the affidavit are true
• whether it was validly sworn, or by whom
• whether it was accepted, relied on or filed by a court

If the recipient needs proof that the affidavit was filed or used in proceedings, that comes from the court, not the notary.

Check whether you are allowed to send it

Affidavits from some proceedings — family law matters in particular — can be subject to restrictions on who may see them or how they may be used outside the case. The rules vary with the kind of proceeding and the orders made, and a notary will not usually be in a position to advise on them.

If the affidavit was sworn in court proceedings, check with the lawyer who acted before sending a copy overseas. This is the step people skip, and it is the one that can cause real trouble.

At the appointment

1. Bring the sworn original (or court-sealed copy), with all exhibits and cover sheets, and your photo identification.
2. The notary sights the original, copies every page, and attaches a certificate describing exactly what was copied.
3. The copy is bound to the certificate so pages cannot be added or removed.

If the affidavit mentions a name different from your current one, raise it now. A statutory declaration linking the names can be done at the same appointment.

Overseas use

• Justice of the Peace: can certify copies for Australian use, free of charge. Not accepted overseas, and DFAT will not apostille it.
• Hague Apostille Convention countries: DFAT issues an apostille on the notarial certificate. Only DFAT issues apostilles.
• Non-member countries: DFAT authentication, then embassy or consulate legalisation.
• Translation: a certified translation is normally bound in. For an affidavit with long exhibits, ask whether the recipient needs everything translated or only the affidavit itself — it changes the cost considerably.

Frequently asked questions

Can the notary certify just the pages I need? Yes, if the certificate says so. It must not describe a partial copy as complete.

My lawyer has the original. Can they post it to the notary? Sometimes; many lawyers prefer to bring it, or to have the notary attend. The point is that the notary sights the original itself.

Can I have the affidavit re-sworn instead? Only by swearing a new affidavit, which is a new document. The original swearing cannot be repeated.

Will a foreign court accept a notarised copy of an Australian affidavit? That is for the foreign court. Some want a court-sealed copy; some accept a notarial copy with an apostille. Ask them.