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29 February 2024 | Story VALENTINO NDABA | Photo Stephen Collett
Prof Bradley
Prof Bradley Smith tackles the ambiguities surrounding trust misuse during divorce proceedings.

In his inaugural lecture on 21 February 2024 at the University of the Free State (UFS), Prof Bradley Smith explored the complexities of trust misuse in the context of property disputes during divorce proceedings. Prof Smith is an Extraordinary Professor at the UFS Faculty of Law. Drawing on two decades of judicial evolution in the Supreme Court of Appeal (SCA), Prof Smith highlighted the inconsistencies in the SCA’s treatment of this issue that impedes attempts to curb “divorce planning” by way of a trust and proposed solutions to address them.

One of the core issues he identified is the abuse of trusts, where assets are placed within a family trust to diminish a spouse’s personal estate value while treating the trust property as personal property for personal gain. This is often done in an attempt to evade the financial consequences of divorce. Prof Smith explained that this practice undermines the essence of trust law and that the inconsistent approaches by our courts exacerbate the challenges in dividing property during divorce proceedings in a manner that respects the spouses’ matrimonial property regime.

Navigating challenges: reflections on research and its importance

Prof Smith’s proposal revolves around the development of a consolidated test for piercing the veneer of an abused trust, aiming to enhance legal certainty. He emphasised the necessity of a unified approach. “Utilising this test will ensure uniformity because of its applicability to all marriages out of community of property, irrespective of whether the accrual system is involved,” he said.

His meticulous examination of conflicting judgments was praised by Dr Brand Claassen, head of the Department of Private Law, who described it as “the work of a master craftsman”. Retired Judge of Appeal, Eric Leach, also highlighted its critical importance in clarifying complex legal issues for the public good.

“It is of critical importance and in the public interest for judicial decisions, particularly those of higher courts such as the Supreme Court of Appeal and Constitutional Court, to be subjected to careful and considered analysis and, if needs be, criticism. Prof Smith’s inaugural lecture on combating trust form abuse in the context of matrimonial property claims at divorce, in which he carefully considered and analysed the conflict between several Supreme Court of Appeal judgments, was a valuable and important study on the issue,” said Judge Leach. He added that he hoped Prof Smith’s research would be considered by the SCA in future.

Future directions: advancing discourse and sound legal theory

Looking ahead, Prof Smith envisions further research into the applicability of the consolidated test to marriages in community of property, aiming to address remaining uncertainties that lie at the intersection of matrimonial property and trust law. He emphasised the importance of countering the prevailing “catch-me-if-you-can” attitude in divorce matters, advocating for proactive measures to uphold fairness and justice in matrimonial property disputes.

In conclusion, Prof Smith’s inaugural lecture provided valuable insights into combating trust form abuse within the context of matrimonial property claims at divorce. His proposed solutions and ongoing research efforts signify a commitment to advancing discourse on trust law theory and practice, with the ultimate aim of a sound judicial approach that serves the needs of South African society.

News Archive

Community Service Summit
2008-10-20

Community service must heal our campus

Photo gallery

Community service and community service learning at the University of the Free State must be put in the forefront of healing our divided campus and our divided country.
This was the message from the Acting Rector Prof Teuns Verschoor when he opened the Community Service Summit that was held in Thaba Nchu on 9 and 10 October 2008.
“The importance of community service is that it heals those who help others because the needs of others are more important than our own needs when we render service to those who are worse off than ourselves,” prof Teuns said.

He said community service has already helped to change the UFS in terms of the academic experience of students and staff and in terms of the perceptions that various communities hold about the UFS.

The summit was attended by more than 35 representatives from different Faculties and departments of the university, representatives from the communities in the Motheo and Xhariep District Municipalities as well as the project managers of Lebone Land and the Bloemfontein Life Change Centre.

Several issues pertaining to the Community Service Policy of the UFS, as well as other related issues were discussed which will culminate in a Statement of Intent that will be handed to the Executive Management of the UFS. This is being done in response to the challenge of the acting rector that the Summit will make a meaningful input in the repositioning process of the UFS.

One delegate described her participation in the Summit as a life changing experience. “This articulation of her experience has captured the views of a lot of the delegates. It shows that there is a big need to cement the importance, commitment to and implementation of Community Service and Community Service Learning at the University of the Free State. With the support of our partners we are determined to make a difference in the lives of the people of the Free State and beyond,” said Rev Kiepie Jaftha, Chief Director Community Service at the university.



 

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