Despite their historic origins, dating back almost two hundred years, statutory declarations are still commonly used to allow an individual to declare something to be true for the purposes of satisfying some legal requirement or regulation, often when no other evidence is available to prove the matter in question.
The following guide examines the nature of the statutory declaration, from what these are and how they can be used, to who can witness a statutory declaration and what prescribed wording must be included for the declaration to be valid and enforceable.
What is a statutory declaration?
A statutory declaration is a legal document governed by the Statutory Declarations Act 1835. It is a formal written statement of fact made in a prescribed manner affirming that something is true to the best of knowledge of the declarant, ie; the person making the declaration. It must also be signed in the presence of an authorised person, such as a solicitor.
Statutory declarations should not be confused with affidavits, although they are often referred to interchangeably. An affidavit is a written and sworn statement of facts, whereas statutory declarations, although formal legally binding statements, are not sworn under oath.
The statutory declaration was introduced in the early 19th century because nonconformists and Quakers objected to taking oaths on religious grounds. The statutory declaration is therefore a simple declaration confirming the statement made, and whilst it is similar to an affidavit, they usually have different uses.
Broadly speaking, affidavits are used during court proceedings, whilst statutory declarations are typically used outside of the courtroom as proof of facts for non-contentious matters.
Who can witness a statutory declaration?
Under the Act, a statutory declaration can be made before anyone who is authorised by law to administer oaths. As such, a statutory declaration may be made in the presence of:
- a practising solicitor
- a commissioner for oaths, ie; a person specifically authorised to verify affidavits and other legal documents
- a notary of the public, also know as a notary public: this is a qualified solicitor who specialises in the authentication and certification of signatures, authority and capacity relating to legal documents for use abroad
- a justice of the peace: this is a lay magistrate, appointed from within the local community
- any other authorised person.
Solicitors in England and Wales holding a current practising certificate have the same powers as a commissioner for oaths for the purpose of certifying a statutory declaration, and in most cases it will be a solicitor who will be used to witness the signing of the declaration.
Officers of the armed services holding the rank of Major, Lieutenant-Commander or Squadron Leader and above, as well as British Diplomatic and Consular Officers in post abroad, may also authenticate a statutory declaration.
When can a declaration be substituted for an oath?
The 1835 Act provides for a declaration to be substituted for an oath where:
- the Treasury uses an oath relating to customs or excise revenues, the office of stamps and taxes, the war office or the national debt office, etc
- a body corporate has the authority to administer or receive, by law or statute or by any valid usage, an oath or affidavit
- the Bank of England requires proof of the identity and death of a proprietor of any transferable stocks or funds, or to remove any other impediment to the transfer of any such stocks or funds, or otherwise deal with the loss, mutilation or defacement of any banknote
- an attesting witness wishes to prove the execution of a will, codicil, deed or written instrument, or for any other competent person to verify and prove the signing, sealing, publication or delivery of any such document.
Unsurprisingly, given the origins of the statutory declaration, these scenarios all sound rather archaic. However, subsequent legislation has since prescribed a number of additional situations when statutory declarations are to be used. There are also circ*mstances in which a statutory declaration can be used, notwithstanding that there is no strict legislative requirement under UK law to do so.
When are statutory declarations commonly used?
Statutory declarations are generally used to satisfy a legal requirement or regulation, often where no other evidence is available to confirm that something is true. A person will usually use a statutory declaration to satisfy the requirements of authorities or government agencies when other documentation is not available to them. For instance, a statutory declaration can be useful to declare one’s identity, nationality or marital status in the absence, for example, of a birth or marriage certificate.
A statutory declaration is also commonly used as a method of legally declaring the intention to change one’s name, where the individual declares that they renounce their old name and adopt a new one in a written document that is witnessed by a solicitor or other authorised person. The statutory declaration can then be used as evidence, for example, in support of an application to HM Passport Office for a change of name on that individual’s passport.
Other common examples of when statutory declarations are used include the following:
- by financial institutions looking to transfer money from the estate of someone who has died to those legally entitled to deal with the deceased’s estate, such as executors of a will
- by those needing to affirm the provenance and nature of goods for export or import
by company directors declaring the solvency of their company when going into members’ voluntary liquidation - by a defendant who was not aware of criminal proceedings against them until after the trial began, so as to provide an explanation for their absence
- by a parent wishing to register a child’s birth in circ*mstances where both parents cannot go in person to the register office
- by an applicant for gender recognition, or by the spouse or civil partner of such applicant who wishes to stay married following the issue of a full gender recognition certificate.
What are the requirements for a statutory declaration?
For a statutory declaration to be valid and enforceable, the information contained within it should be completely truthful and accurate. It must also be signed in the presence of an appropriate person, although whomever hears the declaration is not required to enquire into, nor verify, the truth of it. The function of the person witnessing the signing of the declaration is to certify that they have done so by signing it themselves. However, they should also inform the declarator of their duty to tell the truth when signing the statutory declaration.
If someone makes a false statement that they know at the time to be untrue, they may be liable on conviction to a term of imprisonment for up to 2 years or a fine, or both, under section 5 of the Perjury Act 1911. This specifically deals with false statutory declarations, and other false statements without oath, where a person knowingly and wilfully makes a statutory declaration that is false in a material particular.
In addition, the declarator may be liable for an offence by virtue of other statutory provisions. For example, under section 89 of the Insolvency Act 1986, it is an offence for a director to make a statutory declaration of a company’s solvency without reasonable grounds.
To be valid and enforceable, a statutory declaration must also be impartial. This means that if the declarator is using a solicitor to witness their signature, that solicitor cannot also be acting for them in any legal matter requiring the declaration in the first place, nor one that has drafted and prepared the declaratory statement on their behalf. Put simply, a solicitor cannot certify a declaration if they are acting for the declarator, where a different solicitor will need to witness and sign the declaration.
Any failure by the declarator to have their signature witnessed by an impartial authorised person could result in their declaration being declared invalid and unenforceable. For the purposes of impartiality, it is also important that the person acting as witness is not related to or known socially by the declarator, as this could lead the relevant authority to question the enforceability of the document.
Is there a statutory declaration form?
In some cases, there are prescribed statutory declaration forms, for example, where a defendant is ignorant of criminal proceedings against them and needs to explain their absence from trial, or in the context of a gender recognition application. Otherwise, section 20 of the 1835 Act prescribes that the wording of the statutory declaration to be given is set out in the schedule to that Act.
This means that all statutory declarations must follow a set structure and contain specific wording, where any failure to follow the prescribed format will again invalidate the document. In broad terms, the statutory declaration must contain the following information:
- the declarator’s full name and address
- a statement that they “do solemnly and sincerely declare”
- a statement that the things they say are true.
However, the form of the statutory declaration as prescribed in the schedule, means that the statutory declaration must always include the precise wording to be valid and enforceable. A sample of the wording to be used in statutory declarations is as follows:
I [full name] of [the person’s address] do solemnly and sincerely declare, that/as follows… (insert here the appropriate wording setting out what needs to be declared) …and I make this solemn declaration conscientiously believing the same to be true, and by virtue of the provisions of the Statutory Declarations Act 1835.
Declared by [full name]
At… (leave blank for solicitor/commissioner/notary public etc to insert address)
On this [day] of [month] 2021
Before me……(leave blank for solicitor/commissioner/notary public etc to sign)
Qualification of witness authorised to administer oaths… (leave blank for solicitor/commissioner/notary public etc to complete).
If a statutory declaration is received where this wording is not included, it will not usually be treated as an acceptable statement of fact for the purpose for which it was intended.
How much does a statutory declaration cost?
Section 19 of the 1835 Act prescribes that the fee for administering a statutory declaration is due and payable once the declaration has been made. Essentially this means that the fee must be paid to the solicitor or other authorised person once they have authenticated and signed the declaration.
The cost of a statutory declaration should be just £5, with an additional £2 for each of any exhibits that may be attached. Ordinarily, the fee is paid in cash to the solicitor or other authorised person at the time the statutory declaration is made.
Statutory declaration FAQ’s
What is a statutory declaration UK?
A statutory declaration is essentially a formal written statement of fact made in a prescribed manner affirming that something is true to the best of knowledge of the declarant, ie; the person making the declaration. It must also be signed by an authorised person, such as a solicitor, a commissioner for oaths or a notary public.
What is a statutory declaration form?
A statutory declaration form is a legal document following a set format and using specific wording that “ I [full name], do solemnly and sincerely declare, that/as follows… and I make this solemn declaration conscientiously believing the same to be true, and by virtue of the provisions of the Statutory Declarations Act 1835”.
How do you get a statutory declaration?
You can get a statutory obligation by signing a written document using the prescribed wording, including that you do solemnly and sincerely declare the facts to which the matter relates, and that these things are true, and by signing this document in the presence of a solicitor, notary public or commissioner for oaths.
How do I write a statutory declaration UK?
A statutory declaration needs to be in a set format using prescribed wording. If the document is not in the correct format, it may be deemed invalid and unenforceable. In the event of any uncertainty, it is always best to seek expert legal advice or pay a solicitor to draft the document on your behalf, although a different solicitor should then witness your signature.
Legal advice
The matters contained in this article are intended to be for general information purposes only. This article does not constitute legal advice, nor is it a complete or authoritative statement of the law, and should not be treated as such. Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.
