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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

Exciting open day and Albert Einstein program at Boyden Observatory

2005-05-06

National Science Week, which will be held from 7-14 May 2005, is an annual country-wide celebration of science, led by the Department of Science and Technology. The department selected a proposal by the Boyden Science Centre to coordinate a week of activities in the Bloemfontein area as one of the many projects in the country.

The project for Bloemfontein and surrounding areas will be delivered though a collaboration between the National Museum in Bloemfontein and the University of the Free State (UFS), including the Research Institute for Education Planning, the Department of Physics and other departments in the Faculty of Natural and Agricultural Sciences.

The purpose of National Science Week is:

to create awareness of the important role that science play in people’s daily lives;
to encourage our youth to consider studying and improving their performance in mathematics and science; and
to attract more of our youth into science, engineering and technology (SET) careers.

World Year of Physics and Albert Einstein Program at Boyden Observatory

The International Union of Pure and Applied Physics (IUPAP) declared the year 2005 as the World Year of Physics (WYP). In recognition of this declaration, the great contribution of Physics to the development of technology, and its importance in our everyday lives will be featured strongly during the National Science Week 2005.

On Saturday 7 May 2005 there will be a public programme at Boyden Observatory from 15:30 as a contribution to the World Year of Physics. The programme will be presented in collaboration with the Bloemfontein branch of the Astronomical Society of Southern Africa and will include short presentations on astronomy, space exploration and the sun.

The main presentation will be at 19:00 the evening on the life and work of Albert Einstein. The programme will also include observing sessions through telescopes of objects like the sun, Jupiter and Saturn. There will also be an exhibit on Albert Einstein. Attendance is free but booking is required. For bookings, phone 051-4012561.

Public lecture programme:

Next week the following exciting public lectures will be presented as part of the Science Week activities:

Monday 9 May 2005

National Museum:

A discussion on Apocalypse Then: the greatest mass extinction of all time. The lecture will be presented by Dr Jennifer Botha, Paleontologist at the National Museum.
Bookings: 051-4479609 (entrance is free).

UFS campus:

All lectures at Kine 2, Medical Faculty, UFS campus. Follow directions from the DF Malherbe Road entrance.
Bookings: 051-4012561 (entrance is free).

Tuesday 10 May 2005:

A discussion on the Tsunami disaster of 26 December 2004 at 19:30 (UFS campus, Kine 2 Medical Faculty).

Wednesday 11 May 2005:

A discussion on Is there life out there? at 19:30 (UFS campus, Kine 2 Medical Faculty).

Friday 13 May 2005:

A discussion on Hunting Black Holes at 19:30 (UFS campus, Kine 2 Medical Faculty). The lecture will be presented by Dr Phil Charles, Director: South African Astronomical Observatory.

Science awareness day at the National museum

The science week will be concluded on Saturday 14 May 2005 with a special Science Awareness Day at the National Museum, Aliwal Street, Bloemfontein.

The excellent exhibits at the museum will be supplemented with activities, career information and video shows. The duration of the programme will be from 10:00-16:00. For enquiries, please call 051-4479609.

Issued by:  Lacea Loader
   Media Representative
   Tel: (051) 401-2584
   Cell: 083 645 2454
   E-mail: loaderl.stg@mail.uovs.ac.za

6 May 2005

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