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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

Different religions introduced at UFS forum
2010-08-18

 
Mr Ronnie Rosen, leader of the Jewish community in Bloemfontein.

The Inter-Religious Forum (IRF) of the Faculty of Theology at the University of the Free State (UFS) has started a discussion series which offer the opportunity to different religions to introduce themselves. According to Rev. Maniraj Sukdaven from the Department of Religion Studies at the UFS, the purpose of the discourse series is to get to know more about one another’s religion within an atmosphere of respect.

During the last IRF meeting, Mr Ronnie Rosen, leader of the Jewish community in Bloemfontein, gave a talk about the Jewish religion. According to him there is a wide range of Jewish people.

“The one thing, however, that all Jewish people have in common is the Torah or Law-Book. There are 613 instructions that help a Jewish person to organise his life according to the Jewish way of life. For example, a Jewish person who wants to obey the Torah would not consume dairy products and protein together. This life style is not only regarded as a religion, but a way of life, which constantly makes a person aware of his relationship with God,” he explained.

Another interesting fact that transpired during the discussion was that, for the first time in the history of the world, there are more Jews in Israel than in other concentrated areas across the world. Five (5) million Jews are currently living in Israel, while the remaining 10 million Jews are spread across the world.

During the meeting of the IRF forum, persons from amongst others the Baha’i, Hindu and Christian religions participated in the discussion. Other religions that have already been discussed are Hinduism, Christianity, Islam and Rastafarians.

The IRF will also be involved in the structuring of course material about the different religions and an inter-religious conference will be part of the IRF’s programme in 2011.

The IRF is the only institution of its kind at South African universities.



 

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