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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

Golden Key Chapter of the UFS walks away with gold status
2011-10-13

 

This generation has to find a mission, something they can be as passionate about as their predecessors of the 1970s were. A greater nation has just risen. At the 2011 South African Golden Key Summit, were from left: Mr Ruddy Banyini, outgoing President: UFS Chapter; Mr Puso Thahane, President: Wits Chapter, and Mr Katleho Mohono, Vice-President (Internal): Wits Chapter.
Photo: Leonie Bolleurs

Our university earned gold status as one of the top chapters in the country. This was one of four awards won by the UFS at the 2011 South African Golden Key Summit held at the Bloemfontein Campus from 6-8 October 2011.

Mr Ruddy Banyini, outgoing  Golden Key president (UFS) and the president of the Wits Chapter jointly received the Regional Student Leader of the Year award. The UFS Chapter also took third place for Best Community Service as well as for Best Campus Awareness Initiative. This follows hot on the heels of the chapter winning the Golden Key International Chapter Service Award for the second consecutive year in May 2011.
 
The summit also yielded some new challenges for all chapters. Mr Banyini and his counterparts from the University of Witwatersrand are on a mission to cultivate a nation of thinkers. This follows the successful hosting of a Thinkers Symposium by the Wits Chapter to determine the contribution thinkers could make towards shaping a better society. “This initiative will see all students on campus mobilised and actively participating,” Mr Banyini said. “Thoughts without action are just thoughts. We are all aware of social ills in our country, yet only a few come forth with a solution,” stated Mr Katleho Mohono (Wits).
 
The involvement of Golden Key members in helping to create solutions for national problems has triggered a series of think-tank symposiums organised by various chapters. The result has been an exponential growth in the numbers of those collectively involved in the on-line National Planning Commission’s consultative forum. “The impact of mobilising the best current academic achievers in Higher Education opens up exciting new possibilities through constructive student engagement with society’s issues,” Dr Derek Swemmer, Registrar at the UFS,” said.

 

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