Latest News Archive

Please select Category, Year, and then Month to display items
Previous Archive
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

‘Gaza doctor’ Izzeldin Abuelaish visits UFS
2011-10-12

 

Dr Izzeldin Abuelaish

Dr Izzeldin Abuelaish, Harvard graduate and Associate Professor at the University of Toronto Dalla Lana School of Public Health, is a Palestinian doctor who became the centre of a media firestorm in January 2009 when three of his daughters were killed and members of his family injured in an attack on Gaza (see e.g. The New York Times:http://www.nytimes.com/2009/01/18/world/middleeast/18doctor.html ). He is the author of the bestselling I shall not hate: a Gaza doctor’s journey on the road to peace and human dignity. Dr Abuelaish will present two public lectures on 17 and 18 October 2011. Dr Abuelaish was nominated for the Nobel Peace Prize in 2010.

The 18 October lecture in the Faculty of Health Sciences is registered for 2 ethics ceu's on Level 2, reference number: MDB004/002/10/2011.

Date: 17 October
Time: 19h00-20h00
Venue: Education Faculty Auditorium (new building behind Sasol Library) 
Title: "I shall not hate": A Gaza Doctor's Transformational Journey of Loss, Love and Change

Date: 18 October
Time: 12h45 vir 13h00-14h00
Venue: Health Sciences Faculty Metro 3 (across Francois Retief Building)
 
Title: A healing bridge: A Gaza Doctor's Journey on the Road to Peace and Human Dignity
 
For information: call the International Institute for Studies in Race, Reconciliation and Social Justice (401 9808) or Prof Jackie du Toit: dutoitjs@ufs.ac.za

We use cookies to make interactions with our websites and services easy and meaningful. To better understand how they are used, read more about the UFS cookie policy. By continuing to use this site you are giving us your consent to do this.

Accept