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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

Alexander Ramm Cello Recital with Pieter Jacobs (piano)

2016-04-15

Description: Ramm Tags: Ramm

Alexander Ramm

“Ramm plays with enormous musical authority. Unlike many young instrumentalists, he is not intimidated by the reflective or the elegiac; nor is he nervous about the length of pauses, or the creation of inter-phrase silence. He has a phenomenal technique and he demonstrated it to full effect in this captivating performance.” (Cape Times)

Alexander Ramm belongs to the new generation of cellists recognised for his appealing artistic creativity and unprecedented technical skills. Alexander started his musical education at the age of seven at the Glier music school (Kaliningrad) with Svetlana Ivanova. Her extremely serious attitude to music studies and pedagogical talent revealed the rare musical capabilities of this young cellist.

After moving to Moscow at the age of ten, he was accepted to the class of Maria Zhuravleva at the Chopin Moscow College of Music Performance. From 2007, he continued his professional education at the Moscow Conservatory in the class of the renowned musician and the People’s Artist of the USSR, Natalia Shakhovskaya, an outstanding performer and pedagogue who taught most prominent Russian cellists. Since 2012, he has become a postgraduate student at the Hanns-Eisler Hochschule fur Musik under the guidance of the famous cellist, Frans Helmerson.

From the age of nine, when he made his debut as a soloist with the Kaliningrad Chamber Orchestra, Alexander brilliantly performs with solo programmes and as a soloist with leading orchestras in Russia and worldwide.

He is prizewinner at several international competitions:
1st prize: 4th Moscow Competition for young cellists (2003)
1st prize: 1st Cambridge International Boston Competition (Massachusetts, 2005)
Grand-Prix: Moscow Festival of Romantic Music (Moscow, 2006)
4th prize: 5th UNISA International String Competition (South Africa, 2010)
1st prize: 3rd Beijing International Music Competition (Beijing 2010)
1st prize: 1st All-Russia Music Competition (Russia, 2010)
Prizewinner: Janigro Cello Competition (Croatia, 2012)
Prizewinners: Swedish Duo Competition with duo partner Anna Odintsova (2012)
3rd prize: Paulo Cello Competition (2013) – becoming the first Russian prizewinner in the history of this prestigious contest
2nd prize: XV International Tchaikovsky Competition (2015)

Alexander participated in masterclass festivals at Courchevel Academy and Holland Music Sessions, where he took lessons from the famous musicians such as F. Muller, R. Latzko, M. Kliegel and U. Wiesel. In 2011, he took part in the well-known Verbier festival, where he studied with H. Hoffmann, F. Helmerson, M. Suzuki, L. Power and F. Radosh. At the end of the festival, he was awarded the Neva Foundation top-level prize for gifted students.

Alexander cooperates with such outstanding conductors as V. Gergiev, V. Spivakov, A. Levin, K. Orbelyan, V. Polyansky, S. Kochanovsky, M. Fedotov, A. Slutsky, A. Sladkovsky.

He will be accompanied by Pieter Jacobs, a graduate of the University of Pretoria, who then furthered his studies at Yale in the United States, where he pursued his performing career with considerable success as a soloist and chamber musician in Boston, Cambridge and New Haven before returning to South Africa to perform and teach at the University of Pretoria. Pieter is regarded as one of SA’s foremost pianists and chamber musicians.

Programme:
Grieg: Cello Sonata, Op. 36 in A minor (1883)
Barber: Cello Sonata, Op. 6 in C minor (1932)
Prokofiev: Cello Sonata, Op. 119 (1949)
Piazzolla: Le Grand Tango for cello and piano

Date: 22 April 2016
Time: 19:30
Venue: Odeion
Costs: R130 (adults), R90 (pensioners), R70 (UFS staff members), R50 (students and learners), R50 (group booking of 10+). Tickets available at Computicket.

More information: Ninette Pretorius +27(0)51 401 2504.

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