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Prof Bradley Smith addresses matrimonial property and trust law complexities

29 February 2024 | Story VALENTINO NDABA | Photo Stephen Collett

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 forms a strategic partnership with Yale University

2010-03-16

At the official inauguration of the Jonathan Edwards Center Africa was, from the left, front: Prof. Harry Stout, Chair of the Department of American Religious History at Yale University; Prof. Jonathan Jansen, Rector and Vice-Chancellor of the UFS; back: Prof. Dolf Britz, Director of the Jonathan Edwards Center Africa at the UFS; Prof. Kenneth Minkema, Executive Director of the Jonathan Edwards Center at Yale University; Prof. Adriaan Neele of Yale University, now also Professor Extraordinary in the Faculty of Theology at the UFS; and Prof. Francois Tolmie, Dean of the Faculty of Theology at the UFS.
Photo: Stephen Collett

The University of the Free State (UFS) officially inaugurated the Jonathan Edwards Centre Africa in its Faculty of Theology last week. This centre, affiliated with the Jonathan Edwards Centre Yale University in New Haven in the United States of America, was established at the UFS last year.

The strategic partnership between the UFS and Yale University exemplifies the vision of the Faculty of Theology to be an internationally renowned theological and training faculty.

Leading scholars from Yale University, Prof. Harry Stout, Chair of the Department of American Religious History, and Prof. Kenneth Minkema, Executive Director of the Jonathan Edwards Center at Yale participated in the inauguration of the Jonathan Edwards Center Africa.

The Dean of the Faculty of Theology, Prof. Francois Tolmie said, “This visit underscores the strategic relationship between Yale University and the Faculty of Theology and will assist in us continuing to foster high aspiring scholarship, student and faculty support.”

This is an exciting development between universities renowned for excellence in learning, and innovation in scholarship. Prof. Minkema added, “The establishment of this renowned center for research, education and publication, at the UFS is a significant expansion of Edwards scholarship and will serve widely both academia and the church,” Said Prof. Stout.

The Faculty of Theology also announced the appointment of Prof. Adriaan Neele of Yale University as Professor Extraordinary. The appointment follows the vast growth of the Jonathan Edwards Centre Africa. “I welcome this appointment with much anticipation as the strategic relationship between Yale University and the Faculty of Theology develops in unprecedented ways, attracting doctoral students from Southern Africa, South Korea and America,” said Prof. Tolmie.

Jonathan Edwards (1703-1758), pastor, revivalist, Christian philosopher, missionary, and president of Princeton University, is widely regarded as North America’s greatest theologian. He is the subject of intense scholarly interest throughout the world, because of his significance as a historical figure and the profound legacy he left on America’s religious, political and intellectual landscapes.

“The centre and appointment of Prof. Neele will provide sustainable scholarship of primary sources in new and promising ways, said Prof. Dolf Britz, Director of the Jonathan Edwards Africa at the UFS.

“My appointment at this prestige university of Southern Africa is both an honour and humbling. I look forward to a beneficial and academic engagement with students, as well as to serve the academy and the church,” said Prof. Neele.

Prof. Neele’s inaugural address entitled A Transitional Moment in Theology argued for the classicality and catholicity of Edwards’ theology.

The interest in Edwards globally has in part been fuelled by the work of the Jonathan Edwards Centre at Yale University, whose sole mission is to support inquiry into the life, writings, and legacy of Jonathan Edwards by providing resources that encourage critical appraisal of the historical importance and contemporary relevance of America’s premier theologian.

The primary means to achieve this are with the Works of Jonathan Edwards Online, a digital learning environment for research, education and publication that presents all of Edwards’s writings, along with helpful editorial materials that allow the reader to examine Edwards's thought in incredibly powerful, useful ways.

Media Release
Issued by: Lacea Loader
Director: Strategic Communication (actg)
Tel: 051 401 2584
Cell: 083 645 2454
E-mail: loaderl@ufs.ac.za
15 March 2010

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