An affidavit as a tool for confirming facts: when it is needed and how to draw it up correctly

In the practice of many countries, an affidavit is a legally significant document in which a person certifies certain facts in writing under oath. In recent years, Ukrainians are increasingly faced with the requirement to provide an affidavit during visa registration, immigration procedures, confirmation of family ties, participation in foreign court cases or even in domestic situations abroad. Despite the fact that this document is actively used in the USA, Canada, Great Britain, Australia and other common law countries, for most Ukrainians the concept of “affidavit” remains unclear: how does it differ from a statement, is it equivalent to a notarial document, which has legal force and can be evidence in a case.

The Editorial Board of IA “FAKT” turned to the lawyers of the “Repeshko and Partners” Bar Association to find out what an affidavit is, in which cases it is needed, how to prepare it correctly, and what is its legal force.

Many people do not know what exactly lies behind the mysterious word “affidavit”, sometimes using it incorrectly. This is not surprising, because there is simply no separate norm of the law or by-law that would define this concept in Ukrainian legislation. This is explained by the fact that this document is almost not used in our country, but many of our citizens have already encountered it in the last three years abroad.

Let’s give an example: a citizen of Ukraine, having gone abroad under temporary protection in Germany in the spring of 2022, met her love – a sincere Aryan with a big heart and an even bigger house. In the list of documents that must be submitted for marriage registration, there is a certificate from the Ukrainian Civil Status Registration Department that the Ukrainian woman is not currently married. For many of our refugees, the Job Center required this certificate in order to correctly calculate benefits as a single person who is not in a registered marriage. In some official bodies, they were asked to provide such a certificate in addition to the court decision on the dissolution of the previous marriage. However, the fact is that Ukrainian RACs have never issued, do not issue, and cannot issue such certificates, because digitalization has not yet entered our lives so much. The marriage could be concluded abroad in another country, during the times of the USSR, part of the territory of Ukraine has been under occupation for ten years and there are many other nuances.

It is in such cases that an affidavit comes to the rescue, which is a written solemn statement about the presence or absence of certain facts (events) that have legal significance. The interpretation of this document states what distinguishes it from other documents of a similar type – solemnity. At the same time, there is no explanation of what exactly the celebration should be and what it should look like. This wording looks all the more strange, because notaries work with the affidavit, whose work has nothing to do with the celebration – routine, mundane, pieces of paper. In this case, most likely, it was meant that this is not just a statement, but a legally valid and important document. But if you look at it from the other side, any statement is significant and important for every citizen. So we keep in mind that this is nothing more than just a statement.

The document containing the very concept of affidavit is the clarification of the Ministry of Justice of Ukraine regarding the notarization on behalf of citizens, enterprises, institutions and organizations of Ukraine of documents intended for action abroad from February 1, 1998.  It is stated in it that, as a rule, documents drawn up in compliance with the requirements of foreign law, with their unusual legal terminology and use of legal formulas, differ significantly from
documents accepted in the legal circulation of Ukraine.  In particular, they may have unusual titles (for example, affidavit, certificate, retainer, authority, grandfather, etc.), contain an Affidavit – a written solemn statement.

In the future, Article 34 of the Law of Ukraine “On Notaries” comes into play, in which the list of actions performed by notaries includes certifying the authenticity of signatures on documents.

The following documents can be legalized through an affidavit:

• passport;
• medical certificates (vaccination certificate, sick leave, etc.)
• company documents (minutes, power of attorney on company letterhead, contract);
• certificates that have been translated into a foreign language;
• certificates from the State Register of Real Property Rights;

• an extract from Acts about the lack of criminal record;
• certificate of fines for violation of traffic rules;
• documents without stamps or signatures (for example, printed electronic certificates).

Therefore, this procedure is used when a document that cannot be legalized or apostilled is required for foreign use. In fact, the document is apostilled through the affidavit.

Using the affidavit, it is possible to confirm the following facts:

• that the person is not married;
• funding sources;
• work experience;
• a person’s place of residence;
• maintenance of a child;
• family ties.

It should be noted that state and private notaries draw up affidavits. At the same time, it should be noted that notaries, certifying the authenticity of the signature itself, do not certify the facts stated in the document, but only confirm that the signature was made by a certain person. An affidavit will be useful if, by law, it is not possible to put an apostille on the document; the foreign consulate refuses to accept documents without legalization; wasting time and money trying to process documents.

As a rule, the affidavit contains the following elements:

• information about the person giving written testimony: name, address, profession, etc.;
• statements of fact;
• an oath (confirmation) on behalf of the person that everything stated in the affidavit is true;
• the person’s signature and the date of the affidavit;
• confirmation by a notary or other authorized person that the document is signed by the “author” of the affidavit, who is also called the affiant, in his presence and with due formalities.

At the same time, official documents, letters, receipts, their copies and other sources of information referred to in the affidavit may be attached to the affidavit. Documents (letters, photos, receipts, etc.) attached to the affidavit to confirm the facts stated therein are stapled to the front of the affidavit.  According to the requirements of some countries, the presence of these applications must be reserved in the certification inscription.

It should be borne in mind that the document intended for action abroad is written in Ukrainian.  At the request of citizens, it can be translated into a foreign language in accordance with the rules for certifying the authenticity of the translation of a document from one language to another. When drawing up documents intended for action abroad, notaries must take into account some features of their drawing up and drawing up.  In particular, in the affidavits, in addition to the surname, first name and patronymic, which must be recorded according to the passport, it may also be indicated by which surname or first name the citizen is known in a foreign country.  For example, Khoma Ivan Vasyliovych, known as John Khoma.

Please note that the affidavit, which was drawn up on the territory of Ukraine, in order to use it on the territory of other states, requires a legalization procedure. At the same time, notaries do not have the right to certify the authenticity of a natural person’s signature on a document in which circumstances are asserted, the right to certify which belongs only to the relevant state body, for example: time of birth, marriage, death, presence of illness, disability, ownership of property, etc. The authenticity of the signature on such a document can be certified if the document is intended for submission to the competent authorities of another state.

In order to certify the authenticity of the signature on the affidavit, a person must apply to any state notary office or to a private notary with the following documents:

• a document certifying identity (a passport of a citizen of Ukraine or another identity document provided for by the Law of Ukraine “On the Unified State Demographic Register and documents confirming citizenship of Ukraine, certifying a person or his special status”);
• documents (letters, photos, receipts, certificates, extracts, etc.) that will be attached to the affidavit.

Note that the authentication of a person’s signature is a paid service. If you contact a private notary, the amount of the fee will be determined by the agreement of the parties, while public notaries for the performance of notarial acts pay a state fee and charge a fee for providing additional services of a legal nature that are not related to the performed notarial acts, as well as of a technical nature.

It is important that drawing up an affidavit requires special attention from the person who intends to sign it. The fact is that for many notaries, this is an exotic service. Someone will immediately refuse this action, and someone will agree to make a statement without having the relevant experience. We advise you to find the same notary who has drawn up this document more than once, because an incorrectly executed affidavit may be rejected in the country of destination.

We also recommend that you find out in advance what exactly the country’s requirements are for the affidavit, so that it is unconditionally accepted by the relevant state authorities. Each country has its own peculiarities regarding the text and procedure for submitting documents. For example, in Spain and Italy, a translated and certified copy is sometimes additionally required.

And finally, carefully check the validity of the documents! For example, a criminal record certificate has a limited validity period (usually 90 days), and an extract from the state register of real estate that is almost a year old will be invalid. So, in order not to redo everything again, wasting time and money, it is better to take care of a valid certificate, which is guaranteed to reach the destination fresh.