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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

PwC invests in student potential at UFS
2017-02-28

Description:PwC invests in student potential  Tags: PwC invests in student potential  longdesc=

From the left are: Cassius Coetzee, Marketing
Manager at PwC, Mbalentle Mdange and
Clementine Molaeng, both accounting students
at the UFS, and Belinda Janeke from the Career
Development Office at the UFS.
Photo: Siobhan Canavan

Corporate Bloemfontein has made it its mission to invest in the potential of students, which is exactly what PricewaterhouseCoopers (PwC) set out to do with its competition for accounting students.

PwC to join UFS Career Fair in 2017

The Career Development Office at the University of the Free State (UFS), in partnership with PwC, held a competition in which students had the opportunity to win book vouchers.

Cassius Coetzee, marketing manager at PwC, did the handover at the UFS which saw Mbalentle Mdange and Clementine Molaeng each walk away with book vouchers to the value of R1500, as well as goodie bags from the Career Development Office.

Belinda Janeke from the Career Development Office said it was always a pleasure working with the PwC team and said they would be joining the UFS Career Fair later this year.

Corporate companies and the community

Vicky Simpson, from the Department of Institutional Advancement, said there were businesses and organisations that believed in making a difference in the lives of students. “We commend each of them for their passion and enthusiasm. Collaboration is the key to the success of our community. People matter to us and even more so, the important role we play within our community.”

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