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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

UFS to celebrate Darwin Year
2008-11-10

The University of the Free State (UFS) will next year be celebrating Darwin Year with a comprehensive programme in which many of its departments will take part. The programme is spearheaded by the Faculty of Natural and Agricultural Sciences, in cooperation with the National Museum.

“Next year it will be 200 years since the birth of Charles Darwin and 150 years after the publication of the first edition of his famous book ‘On the Origin of Species’”, says Prof. Jo van As, chairperson of the organising committee and head of the Department of Zoology and Entomology at the UFS.

“The programme aims to portray the influence of Darwin’s theory of evolution on various fields in the natural and agricultural sciences. It will start in February 2009 and end a year later in February 2010. We see this as a good opportunity to promote science in its broadest context,” says Prof. Van As.

According to Prof. Van As a scientific lecture programme on evolution and its impact on various fields will be presented on the Main Campus of the UFS in Bloemfontein on a monthly basis throughout next year. These will include topics such as the mechanisms of evolution: heredity and natural selection, extinction, the start of agriculture, human demography, human impact and the resistance to HIV/Aids antibiotics. The theme of the lecture programme is “The Story of Life”.

A stage play to commemorate the life of Darwin and celebrate his contribution to the understanding of life will also be performed during the Volksblad-kunstefees.

The National Museum will host different events and exhibits. “They will participate in the programme presented at the UFS, present temporary exhibitions to coincide with the programme on campus and also present their own events,” says Prof. Van As.

More information about the programme can be obtained from Ms Isabel Human at 051 401 2427 or humanci.rd@ufs.ac.za.


Media Release
Issued by: Lacea Loader
Assistant Director: Media Liaison
Tel: 051 401 2584
Cell: 083 645 2454
E-mail: loaderl.stg@ufs.ac.za  
10 November 2008
 

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