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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 changes format of graduation ceremony

2011-04-17

The highest number of qualifications in the history of the University of the Free State (UFS) will be awarded at the autumn diploma and graduation ceremony from 9-11 May 2011, which will be held in the Callie Human Centre on our Main Campus in Bloemfontein.

From this year, the format of the ceremony will change to make it more visible to students and the public. For the first time, all the doctoral and master’s degrees from each respective faculty will be conferred during one ceremony on 11 May 2011, instead of each faculty handling these qualifications individually. Another change in the format is that the procession will gather on the Red Square in front of the Main Building and move to the Callie Human Centre from there. Both academic staff and graduands will partake in the procession.

A total of 3 674 qualifications will be conferred during this year’s graduation ceremony, including 629 diplomas, 2 613 Bachelors and honours degrees, 372 master’s degrees and 58 doctorates.

An honorary doctorate in Drama and Theatre Arts will also be awarded to theatre stalwart Mr Pieter Fourie. He is one of the most acclaimed Afrikaans playwrights in South Africa and probably the only person to have left his mark as an actor, director, artistic director and writer.

Mr Fourie was awarded the Gerhard Beukes prize for drama , was honoured for his contribution to the arts by the South African Academy for Science and Arts and was appointed as trustee of the Arts and Culture Trust of the State President in 1997. He has also served as a committee member of the South African Academy for Science and Arts.

Mr. Fourie has also been the proud recipient of the Hertzog prize for drama, two FNB-Vita awards and a Fleur Du Cap award.

The full programme for the respective ceremonies is as follows:

Monday, 9 May 2011:

At 08:30, certificates and diplomas, excluding PGED and PGES, will be awarded to graduates from the Faculty of Education and at 12:00 PGED, PGED and B and honours degrees will be awarded to students from the same faculty. At 15:30 on the same day, certificates and B and honours degrees will be awarded to students in the Faculty of the Humanities.

At 19:00, the Faculties of Education, the Humanities and Economic and Management Sciences will have their prize-giving ceremonies for outstanding achievers.

Tuesday, 10 May 2011:

At 08:30, students in the Faculty of Economic and Management Sciences will graduate and at and 12:00 the Faculty of Natural and Agricultural Science will join them. This includes students in BML, B.Admin., B.Pub. and related honours degrees. At 15:30, 503 students from the Faculty of Natural and Agricultural Sciences will receive their certificates, diplomas and B and honours degrees.

At 19:00, the Faculties of Health Sciences, Natural and Agriculture Sciences, Law and Theology will have their prize-giving ceremonies.

Wednesday, 11 May 2011:

The Faculty of Health Sciences, the Faculty of Law and the Faculty of Theology will be awarding their certificates, diplomas and B and honours degrees at 08:30. At 12:00, all faculties will award a total of 372 master’s degrees and at 15:30 a total of 58 doctorates will be conferred.

The Chancellor’s Dinner will take place in the Centenary Complex on the Main Campus of the UFS at 19:00.

The graduation ceremony of our Qwaqwa Campus will take place in the Rolihlahla Mandela Hall on the Qwaqwa Campus on 7 May 2011 at 10:00. All the faculties at this campus will confer their degrees, certificates and diplomas at this ceremony.

Media Release
21 April 2011
Issued by: Lacea Loader
Director: Strategic Communication
Tel: 051 401 2584
Cell: 083 645 2454
E-mail: news@ufs.ac.za

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