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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 launches focused research niche areas
2009-11-20

The University of the Free State (UFS) will launch its six research niche areas, the Strategic Academic Clusters, from 23-25 November 2009 on its Main Campus in Bloemfontein.

These Clusters represent a move from a fragmented to a more focused approach to research development at the UFS and will in future direct the University’s research endeavours.

“The UFS is increasingly operating in a competitive environment where South African universities no longer compete only with their national counterparts, but also internationally. With the Clusters the University will follow a focused approach to the strategic selection of niche knowledge platforms and research areas,” says Prof. Frans Swanepoel, Director of Research Development at the UFS.

The Clusters are: Water management in water-scarce areas; New frontiers in poverty reduction and sustainable development; Transformation in highly diverse societies; Technologies for sustainable crop industries in semi-arid regions; Materials and nanosciences; and Advanced biomolecular research.

“The Clusters embody the pursuit of quality and excellence and the name signifies the University’s concern not only with research, but also with under- and postgraduate teaching and learning. The vision is that the Cluster activities will not only drive world-class research outputs, but also contribute to internationally renowned graduate programme activities,” says Prof. Swanepoel.

Each of the Clusters is led by a dedicated director who provides academic leadership, facilitates cutting-edge research, leverages multidisciplinary synergies and coordinates the overall Cluster activities.

Next week’s launch programme will start on Monday, 23 November 2009 with a gala dinner, followed by a plenary symposium on Tuesday, 24 November 2009, during which the Clusters will be introduced.

Several national and international experts in the fields covered by the Clusters will take part in this symposium. They are, amongst others: Dr Danny Walmsley from St Mary’s University in Canada; Dr David Wolfe from Cornell University and Dr David Clark from the National Institute of Health, both in the USA; Mr Mark Ashley from the Desert Knowledge Cooperative Research Centre in Australia; Dr Ian Goldman from the Office of the Presidency in South Africa; Prof Peter Ewang from the South African National Development Agency; Mr Willem Louw from Sasol Technology; and Dr Pumla Gobodo-Madikizela from the University of Cape Town.

On Wednesday, 25 November 2009 each Cluster will present its own symposium.

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  
20 November 2009

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