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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

Third NRF A-rated researcher for UFS
2017-02-03

Description: Prof Jansen, NRF A-rated researcher  Tags: Prof Jansen, NRF A-rated researcher

Prof Jonathan Jansen, senior researcher at the UFS
Faculty of Education, recently joined two other
UFS researchers as NRF A-rated researchers.
They from the left are: Profs Melanie Walker, Maxim Finkelstein
and Jansen.
Photo: Charl Devenish

The University of the Free State received its third A-rating from the National Research Foundation (NRF) when Prof Jonathan Jansen was awarded an A2-rating.

Prof Jansen is a Senior Research Professor in Education secondary research field and field of specialisation: Development education and Curriculum theory at the UFS Faculty of Education and Fellow at the Center for Advanced Studies at Stanford University in the US.

Prof Jansen’s rating follows P-rating
Prof Jansen’s rating also adds to the recent P-rating awarded to Dr Daniel Spence, a postdoctoral Research Fellow at the International Studies Group. In receiving the rating, the UFS became the only university in South Africa with a P-rated researcher in History.

P-ratings are given to young researchers, usually under the age of 35, who have the potential to become leaders in their field. Researchers in this group are recognised by all, or the overwhelming majority of, reviewers, as having demonstrated the potential to become future international leaders. 

“Obtaining another A-rating is indicative of the university’s drive to enhance its research profile – nationally as well as internationally. I am thankful to our scholars for their commitment to the rating process and look forward to receive the results of this year’s ratings,” said Prof Corli Witthuhn, Vice-Rector: Research at the UFS.   

Total number of researchers increased
The UFS has also upped the ante with regards to its total number of NRF-rated researchers during the latest rating and evaluation with an increase from 127 in 2015 to 149 rated researchers in 2016.

In 2015, Prof Maxim Finkelstein from the Department of Mathematical Statistics and Actuarial Science, and Prof Melanie Walker, Senior Research Professor and Director of the Centre for Research on Higher Education and Development, were given A-ratings.

Prof Finkelstein’s rating then made him the only A-rated researcher in ‘Probability and Statistics’ regarding Mathematical Sciences in the country. Prof Walker was evaluated and graded in the division for Research, Innovation Support and Advancement.

According to the NRF, A-rated researchers are “unequivocally recognised by their peers as leading international scholars in their field for the high quality and impact of their recent research outputs”.

 

The rating of individuals is based primarily on the quality and impact of their research over the past eight years.

 

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