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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

Odeion String Quartet receives international acclaim
2014-12-22

 

The Odeion String Quartet (OSQ) is a flagship of the UFS and symbolises the university’s commitment to the arts. Most recently, the OSQ walked away with the award for Best Classical Music Performance at the 2014 Kanna ceremony.

It was established in 1991 as a permanent full-time resident string quartet –   at present the only resident string quartet at a South African university – and functions as an independent academic department at the UFS.

The members of the quartet are Samson Diamond (leader and first violin), Sharon de Kock (violin), Jeanne-Louise Moolman (viola) and Anmari van der Westhuizen (cello). They have an extensive national and international background and are highly regarded in music circles as soloists and chamber musicians. The members of the quartet play an important strategic role in the development of symphony orchestra music and in classical music training in the Free State. They are exemplary teachers and attract students from all over the country. The Junior Odeion String Quartet and Odeion Sinfonia provide a unique chamber music training experience to selected students.

They regularly perform to critical acclaim in all the major music centres in South Africa, as well as in SADC countries such as Zimbabwe and Zambia. During 2013 they performed at concerts in Belgium, Germany and Switzerland, where they received standing ovations and very positive reviews.

The quartet is also set on giving back to musical communities around the country, with workshops offering guidance on playing techniques and life-skills that are essential for young people who intend to pursue a career in the music sector.

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