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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

2011 Leadership group meets for the first time

2011-08-01

Photo: Hannes Pieterse

The long application process, panel interviews and nail-biting wait finally came to an end the past week, when the cream of our first-year class of 2011 gathered in the Scaena Theatre on our Bloemfontein Campus, for their first group meeting as the selected Leadership for Change cohort.

These 150 students, from all our faculties, will over the following year be groomed to be leaders, not only at the university, but also in their respective fields and chosen careers.
The first group of students will depart for their respective universities in America and Europe on 22 September 2011, where they will spend two weeks. The second group of students will depart for universities in Japan in January 2012.

Although they have all passed a gruelling selection process, the real hard work is only starting now for these bright young students.

The programme will take place in four phases. During the preparation phase, which has now kicked off, students are prepared for the experience ahead, while being made aware of exactly what to expect from the programme.

In the study-abroad phase, students will be placed at 15 partner institutions in various countries, and will be divided into groups of six to twelve people. According to Prof. Aldo Stroebel, Director of International Academic Programmes, the groups will be diverse, in that there will be a mix of races, genders and study fields, which should guarantee dynamic interaction.

During the group’s first meeting this week, they were informed of the important goals of the Leadership for Change Programme, by Mr Rudi Buys, Dean of Student Affairs.

He imparted the gravity of their selection on the students by saying, “You may not get it yet, but I understand the reason we are all here. I understand that by looking at what you achieve after this programme, we can tell what the country could possibly achieve in the future. It is immensely moving to see the way you all carry yourselves, since I can see something special and unique in each of you.”
“You are all here, not because of which school you went to, or your race, or who your parents are, but because you all show potential to be something great.”

Prof. Stroebel reminded the group that despite the excitement that they all have about visiting universities in America, Europe and Asia, these visits should be seen as study trips.

“You may have three days to acquaint yourselves with the surroundings, but after that there will be very little sightseeing and a lot of hard work.”

They will participate in programmes designed by their respective host institutions, aimed at exposing them to different cultures, lifestyles and beliefs.

They will be accompanied by our staff, who Prof. Stroebel says will grow with the students, as they will be expected to guide the students through their tasks and assignments and interact with them on a daily basis.

Upon their return, there will be a debriefing phase, during which they will be expected to provide feedback on their experiences, as well as submit assignments which they will be assigned at their respective institutions.

The final phase is known as the impact phase, as this will see the students apply what they have learned in a positive manner and help drive the university to the future and to becoming a world-leading tertiary institution.

Media Release
1 August 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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