Family trusts are common in South Africa. They are used to protect assets from creditors, plan for estate duty and keep wealth in the family across generations. But when a marriage ends, a familiar question arises: is the property in the trust “off limits”, or can the court take it into account?
The short answer is that a properly formed and properly run trust is a separate legal arrangement, and its assets generally do not form part of either spouse’s estate. However, where a spouse treats the trust as their own, the courts may look behind the trust form. This article explains when, and how.
The starting point: trust assets belong to the trust
A trust is not a legal person, but its assets are owned by the trustees in their capacity as trustees, for the benefit of the beneficiaries. They are not owned by the founder or by a beneficiary in their personal capacity.
So, if a husband transfers a property to a family trust before or during the marriage, that property is ordinarily not part of his estate for purposes of an accrual calculation or a division of a joint estate. A beneficiary also usually has only a contingent right, which may have little or no value, especially in a discretionary trust.
When courts look behind the trust
The courts have developed two main routes to deal with trusts that are abused.
Redistribution orders: Badenhorst
In Badenhorst v Badenhorst 2006 (2) SA 255 (SCA), the wife claimed a redistribution order under section 7(3) of the Divorce Act. The Supreme Court of Appeal held that, when deciding what assets the husband had, the court could take into account assets held in a trust he controlled. The test was whether the husband had de facto control of the trust and whether, but for the trust, the assets would have been his.
Relevant factors included that the husband effectively controlled the trustee decisions, treated the trust assets as his own, and did not distinguish between his own affairs and those of the trust.
Since the Constitutional Court’s judgments in EB v ER (2023) and GD v Minister of Home Affairs (2026), redistribution claims are available for all marriages out of community of property without accrual, regardless of when the marriage was concluded. This makes Badenhorst even more important. See our article on divorce, pensions and redistribution.
Accrual claims: alter ego trusts
In WT v KT 2015 (3) SA 574 (SCA), the court held that the value of trust assets could be included in the husband’s estate for the accrual calculation, because the trust was his alter ego. He had full control, treated the assets as his own and disregarded the separation between himself and the trust.
But the courts have also made it clear that this is not automatic. In REM v VM 2017 (3) SA 371 (SCA), the court refused to include trust assets because the case had not been properly pleaded and proved. In MJK v IIK [2022] ZASCA 116, the SCA set aside an order that had pierced the veneer of several trusts. The court held that going behind the trust form requires evidence that the trust was used dishonestly or unconscionably, for example to defeat the other spouse’s claim. The mere fact that a spouse controls a trust, or that assets were placed in a trust during the marriage, is not enough on its own.
What has to be proved?
A spouse who wants trust assets taken into account will usually need to plead and prove facts such as:
- the other spouse has de facto control of the trust, for example as the main trustee who makes all decisions, with co-trustees who simply follow instructions;
- the trust’s affairs have not been run separately, for example trust money used for personal expenses, no proper trustee resolutions, no separate accounts;
- the other spouse regards and treats the trust assets as their own; and
- in an accrual case, the trust was used to shield assets from the accrual claim or otherwise abused.
The relief must be properly pleaded from the start. Courts have refused relief where the case was raised for the first time in evidence or argument.
Practical tools: disclosure and the beneficial ownership register
Information about trusts can be hard to obtain. Useful tools include:
- Discovery and subpoenas for trust deeds, financial statements, minutes and bank statements.
- Section 7 of the Matrimonial Property Act, which entitles a spouse to request full particulars of the value of the other spouse’s estate.
- The beneficial ownership register. Since amendments to the Trust Property Control Act in 2023, trustees must keep a record of the trust’s beneficial owners and lodge it with the Master. This can help identify who really controls and benefits from a trust.
- Rule 43 applications for interim relief, including a contribution towards the costs of investigating complex structures. See our guide on Rule 43 applications.
Advice for trustees and founders
If you have a family trust and are married, or are planning to marry, the best protection is a properly run trust:
- appoint at least one genuinely independent trustee who exercises real judgment;
- hold regular trustee meetings and keep written resolutions;
- keep trust money and personal money separate;
- do not use trust assets as your personal assets without proper loan or lease arrangements; and
- keep the trust’s financial statements and beneficial ownership records up to date.
A trust that is run like a trust is far less vulnerable. A trust that exists only on paper invites attack, not only on divorce but also from creditors and SARS.
How O’Reilly Law can help
We advise spouses claiming or defending redistribution and accrual claims involving trusts, companies and complex asset structures. We also advise trustees and founders on trust governance, so that a trust’s integrity is protected before a dispute arises. Contact us to discuss your matter in confidence.
Related reading: Getting divorced in South Africa · Your business in a divorce
This article is general information and not legal advice. Every trust and every divorce turns on its own facts. Correct as at October 2026.