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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

Alumni in the financial sector: money talks!

2016-12-26

Marina Marinkov, Economist at the
International Monetary

Evangelina Nailenge, General
Manager: Investment Institutions at
Namibia Financial Supervisory Authority.

Vuyelwa Vumendlini, Chief Director:
Global and Emerging Markets, National
Treasury.

Prof Meshach Azaikpono, Professor of
Development Finance, University of
Stellenbosch.

Anton Nicolaisen, Provincial Head for
the Free State Province, Standard Bank.

Where are they now?

On good days, most of us battle to set our personal finances straight, let alone be responsible for a large enterprise. So we are extremely proud of the well-trained and talented Kovsie alumni who fill prominent shoes. Operating mostly away from the public eye, they make decisions to improve the economy on various levels. It is heartening to know that the UFS contributes to financial matters and training all across the globe.

Marina Marinkov

Courses: BCom (Economics), BCom Hons (Money and Banking), and MCom (Economics) (2000-2004)
Current position: Economist at the International Monetary Fund
Biggest career obstacle: I once worked for an organisation with poor leadership which negatively affected employee morale and job performance. It still proved to be a great learning experience, though. Bad bosses can teach us powerful lessons.
Best career advice: Stop doubting yourself, work hard and be humble.
Fondest memory of UFS: Time spent on campus with my classmates, whether studying for finals at the library or just catching up between classes. The UFS was also my first employer and I have plenty of wonderful memories with colleagues at the Department of Economics.

Evangelina Nailenge

Courses: BCom Hons (Money and Banking) MCom (Money and Banking) (2005-2006)
Current position: General Manager: Investment Institutions at Namibia Financial Supervisory Authority
Biggest career obstacle: At times, being one of the youngest requires you to work twice as hard to earn your voice and cue at the decision-making table.
Best career advice: “Whatever your hand finds to do, do it with all your might, for in the realm of the dead, where you are going, there is neither working nor planning nor knowledge nor wisdom.” Eccl. 9:10
Fondest memory of UFS: Walking around the campus. Its well-manicured lawns and gardens had a calming effect in the midst of academic pressures. I will forever treasure the moment I first saw my name engraved in the walls of FGG, as the best postgraduate student for both 2005 and 2006.

Vuyelwa Vumendlini

Course: BCom Hons (Economics) (1996-1999)
Current position: Chief Director: Global and Emerging Markets, National Treasury
Biggest career obstacle: Doubting your own capabilities.
Best career advice: The sky is the limit, go for it all out, but most importantly, do something that you are passionate about it. It makes your work much more meaningful.
Fondest memory of UFS: Working as a tutor in my honours year and being able to help other students. I also enjoyed hanging out at Mooimeisiesfontein on Saturday afternoons.

Prof Meshach Azaikpono

Course: PhD in Economics (2004-2008) “The Depth of Financial Integration and its Effects on Financial Development and Economic Performance of the Southern African Customs Union Countries”. He received the Founders’ Medal for the best PhD dissertation in Economics in South Africa.
Current position: Professor of Development Finance, University of Stellenbosch.
Biggest career obstacle: I was fortunate to never have experienced a major career obstacle.
Best career advice: Pursue and focus on your passion.
Fondest memory of UFS: Being a part-time student, I had very limited interaction with the broader university environment. But I really enjoyed the support provided by the library staff and the staff from the Department of Economics. It was always like coming to see friends.

Anton Nicolaisen

Course: BEcon (1986-1989), MBA (1999-2003)
Current position: Provincial Head for the Free State Province, Standard Bank
Biggest career obstacle: Earlier in my career, I fell into a comfort zone and had to acquire the willingness to change.
Best career advice: Continuously challenge yourself to be the best possible person you can be, and run your own race. Learn through difficult times, and be open to change.
Fondest memory of UFS: Although I was not the biggest academic, I enjoyed interacting with lecturers … their stories and unique characteristics. Back then, I interpreted some as funny or awkward, only later did I realise how much I had learned from them. And of course, I’ll always remember the team spirit at athletics meetings and intervarsity.

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