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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

Remain positive, keep an eye on the finish line
2016-11-08

Description: Academic Reboot Pack 2.0    Tags: Academic Reboot Pack 2.0

Dealing with anxiety can be daunting.
There are methods to help and assist
with your anxiety.

Photo: iStock

No one is immune to anxiety, and the current challenging academic times are no exception. With the Academic Reboot Pack 2.0, the University of the Free State (UFS) addresses these adversities.

Dealing with anxiety differently

People react to anxiety differently. For some it’s like a dark tunnel with no light at the end, while it keeps others on their toes. Regardless of how you deal with it, it is still an unpleasant emotion.

“For me, it (anxiety) makes me more determined to do well, so that I can start the next part of my life as soon as possible,” said Greg Butters, a postgraduate BCom Accounting student at the UFS.

Ways to manage and overcome

There are different ways to manage anxiety. Here are some methods that can assist you in dealing with it:

Keep the following in mind when you are feeling anxious:

  • Realise that anxiety is an amplified response to stress.
  • Face your anxiety head-on.
  • Do not add to your anxiety by thinking about what "might" happen. If you find yourself asking "What if?" tell yourself "So what!"

Where to get the right help

It is also important to know that there is help. When you feel that anxiety is affecting you negatively, pick up a phone and call one of the following departments:

 

  • Medical Practice                                +27 51 401 2603
  • Qwaqwa Campus Clinic                    +27 58 718 5210
  • Sports and Exercise Medicine Clinic  +27 51 401 2530
  • First Aid                                             +27 51 401 3325
  • Emergencies (After hours) - ER 24   0800 051 051 or 084 124

You can also contact the South African Depression and Anxiety Group (SADAG) 24-hour helpline. SADAG has various helplines that can help you deal with anxiety and depression.

Get your copy of the Academic Reboot Pack 2.0 on  Blackboardunder announcements or click here to download it.

Also see the first Academic Reboot Pack.

If students have any question or queries regarding the Academic Reboot Pack, they can send an email to: advising@ufs.ac.za.

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