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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

A model of resilience – Dr Anja Botha probes into the ability to recover from trauma
2014-12-02

She may have been awarded her doctorate degree only in July 2014, but Psychology lecturer at the University of the Free State (UFS), Dr Anja Botha, is already making a name for herself with her latest research.

Her study aims to develop a model of resilience for South African adolescents exposed to trauma. “The broad field, within which I work, is that of Developmental Psychology, with a specific focus on child and adolescent development and therapy,” says Dr Botha. 

Resilience studies are situated within Developmental Psychology since normal developmental tasks – such as achieving self-confidence and building supportive relationships – contribute greatly to children’s resilience. Resilience broadly refers to the individual’s ability to ‘bounce back’ after being exposed to adversity.

“The model of resilience which I compiled was a good fit for my participant group, indicating that the model explains the development of resilience in these adolescents well. The factors that I found to promote resilience in the South African context include various coping skills, intra- and interpersonal strengths, family involvement, and school engagement.

“Thus, aside from my passion for resilience studies, I am also very much interested in coping, strength-based interventions, parental guidance and school-based programmes.”

Dr Botha was awarded a Donald J Cohen fellowship in August 2014 during the 21st World Congress of the International Association for Child and Adolescent Psychiatrists and Allied Professions. The fellowship is in recognition of her work as an emerging international scholar in the field of child and adolescent mental health. This award was based on both her research as well as her involvement in the training of postgraduate students in child psychology.

She is currently supervising a number of master’s students’ research on various constructs related to resilience.

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