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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

Centenary celebrations of Faculty of Law reach a highlight
2009-11-19

At the occasion were, from the left: the Honourable Judge Ian van der Merwe; the Honorable Judge Faan Hancke; former Judge of Appeal Joos Hefer; and Prof. Johan Henning, Dean of the Faculty of Law at the UFS.
Photo: Stephen Collett


The Faculty of Law at the University of the Free State (UFS) reached the highlight of its celebrations of a century of excellence in legal education, training and research under the theme “Iurisprudentia 100” at a gala dinner held on the Main Campus in Bloemfontein last week.

At this spectacular occasion Prof. Johan Henning, Dean of the Faculty handed a Cum Laude award to Judge Faan Hancke, Chairperson of the UFS Council and Extraordinary Professor in the Department of Law of Procedure and Law of Evidence. Judge Hancke is the fourth recipient of this award. Judge Hancke received the award for his excellent contributions towards the building of the Faculty of Law and the UFS.

According to Prof. Henning the faculty has a distinguished history of excellence in theoretical as well as practical education and training, which can be traced as far back as to the establishment of the Grey University College in 1904. During this modest beginning the seed was planted for the establishment of the Faculty of Law, which gained momentum when Bloemfontein became the judicial capital of South Africa in 1910.

Other highlights in legal education at the UFS include, amongst others, 1909 when Adv. Percy Fisher, a BA LLB graduate from the University of Cambridge became the first law lecturer to receive a permanent appointment. In 1918 the first LLB degrees were awarded to SP le Roux, later Minister of Agriculture, CR Swart, later Minister of Justice, Governor-General, State President and the first Chancellor of the UFS, and Walther Leinberger, an attorney in town.

In 1945 Law became an independent faculty and in 1948 the first full-time professor, Dr JP Verloren van Themaat was appointed. After Prof. Van Themaat, six deans followed before the appointment of Prof. Henning.

Over the last ten years the faculty has managed to build many international contacts with international leaders in the legal arena, including the Universities of London, Cambridge, Sussex, Tilburg, Kentucky, Heidelberg, Freiburg, Utrecht and Deacon.

The faculty prides itself on the fact that he has prepared many students as well as lecturers who later became presidents, ministers, administrators, judges of appeal, judges and rectors. The faculty has 95 staff members and 2 400 students, of which 1 800 are postgraduate students.

National as well as international leaders in the legal field congratulated the faculty on its 100-year celebrations. Messages of congratulations were also received from, amongst others, universities, legal practices and the government.

Media release
Issued by: Lacea Loader
Deputy Director: Media Liaison
Tel: 051 401 2584
Cell: 083 645 2454
E-mail: loaderl.stg@ufs.ac.za  
18 November 2009
 

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