In Joint Matrimony We Share: Controlling the Powers to Use the Trust to Limit Matrimonial Property Rights in South African Law

Authors: Aubrey Manthwa & Paul Nkoane

ISSN: 1996-2185
Affiliations: Senior Lecturer, University of South Africa; Lecturer, University of South Africa
Source: South African Mercantile Law Journal, Volume 33 Issue 1, 2021, p. 89 – 111


The deceitful use of trusts has created a fair amount of controversy, specifically where it has appeared that a trust has been employed to limit the rights of third parties. This article argues that it is in the interests of the law to ensure that rights are vindicated when unlawfully limited. Similarly, it is in the interest of the common good that legitimately acquired rights are protected. Trust laws state that there must be a separation between control and enjoyment and, in cases where there is no separation, the courts may scrutinise the affairs of a trust. Recent developments have illustrated that measures that provide relief to spouses upon the dissolution of the marriage may not be readily invoked, especially for marriages in community of property. Family trusts have provided spouses with avenues for hiding assets that would otherwise fall into the joint estate. Courts need to adopt a robust approach when dealing with trust assets upon the dissolution of a marriage, particularly to protect the rights of competing spouses.