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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

Ensure your place at the UFS

2010-10-27

The University of the Free State (UFS) appeals to all prospective South African students who want to come and study at the UFS in 2011 to submit their applications no later than Tuesday, 30 November 2010.

The UFS is aware of the fact that learners will not have received their final Grade 12 results by Tuesday, 30 November 2010; therefore provisional admission will be granted based on learners’ most recent Grade 12 results. Final admission will take place upon receipt of the final Grade 12 results, which will be available early in January 2011.

Prospective students can obtain application forms for admission at the following places:

The UFS’s web site at www.ufs.ac.za,
The Information Office (Unit for Prospective Students) at the Thakaneng Bridge on the UFS’s Main Campus in Bloemfontein,
You may also send an e-mail to info@ufs.ac.za or
Phone 051 401 3000 and the necessary forms will be posted to you.

Senior undergraduate students (that is all students who were registered up to and during 2010 at the UFS) as well as post-graduate students, must self-register electronically on-line from Monday, 1 November 2010 until Tuesday, 4 January 2011. This includes master’s and doctoral students.

In order to encourage senior students to register online, the UFS offers 20 laptops as incentives for the senior students who successfully register online from 1 November 2010. These laptops will be handed over to the winners after the registration process in 2011.

Registration of first-year students:

The Rector and Vice-Chancellor, Prof. Jonathan Jansen, will welcome first-year students on Friday, 14 January and Saturday, 15 January 2011, respectively, in the Callie Human Centre. The Faculties of Economic and Management Sciences, the Humanities and Education will be welcomed on 14 January 2011 and the students of the Faculties of Natural and Agricultural Sciences, Law and Theology shall be welcomed on 15 January 2011. The compulsory orientation programme for new first-years will also then commence.

From 17 to 21 January 2011 first-year students will receive academic advice at the Callie Human Centre, whereafter they will be referred for self-registration. These processes will take place according to the set timetable. This timetable is available in the Kovsie Guide that will be sent to learners as soon as we have received their applications, as well as on the web site of the UFS at www.ufs.ac.za/register2011.

First-year students’ fees must be paid prior to arrival on 14 and 15 January 2011.

Registration of senior students:

Senior students who experience problems with the electronic on-line self-registration process have the opportunity to resolve problems within a programme on campus from Wednesday, 5 January until Wednesday, 12 January 2011. This programme will be sent out to students and is also available at www.ufs.ac.za/register2011. The specific scheduled day for senior students to resolve problems is the last and only day to resolve the problem.

Senior students can also contact 051 401 9111 for more information in this regard.

Students may register for prescribed modules for 2011, even though the November 2010 examination results are not yet available. Changes resulting from examination results that are made available later can be done up to and including 28 January 2011.

In terms of applications for senior students, only students who have interrupted a calendar year of study need to re-apply for admission.

Registration of students at the UFS’s Qwaqwa Campus:

Senior and first-year students of the UFS’s Qwaqwa Campus register from Wednesday, 12 January until Friday, 28 January 2011 in the Nelson Mandela Hall on this campus.

Registration of students at the UFS South Campus:

First-year students from the UFS’s South Campus in the University Preparation Programme and the Extended Programme (only Natural and Agricultural Sciences) register from Monday, 24 January till Friday, 28 January 2011 in the Arena Hall on the South Campus.

Students who have successfully completed the University Preparation Programme register with the first-year students on the UFS Main Campus on Friday, 14 and Saturday, 15 January 2011 – according to faculties (cf. paragraph 6).

Lectures for all students shall commence on Monday, 24 January 2011.

MEDIA RELEASE
Issued by: Lacea Loader
Director: Strategic Communication (actg)
Tel: 051 401 2584
Cell: 083 645 2454
E-mail: loaderl@ufs.ac.za
26 October 2010

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