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

• Published date: 22 October 2021
• Pages: 89-111
• DOI: https://doi.org/10.47348/SAMLJ/v33/i1a4
• Author: Manthwa, A.
• Date: 22 October 2021

89

https://doi.org/10.47348/SAMLJ/v33/i1a4

* LLB LLM (Unisa).

† BCom LLB (Unisa) LLM (UCT).

IN JOINT MATRIMONY WE SHARE:

CONTROLLING THE POWERS TO USE THE

TRUST TO LIMIT MATRIMONIAL PROPERTY

RIGHTS IN SOUTH AFRICAN LAW

AUBREY MANTHWA*

Senior Lecturer, University of South Africa

PAUL NKOANE†

Lecturer, University of South Africa

Abst rac t

e deceitful use of trusts has created a fair amount of controversy,

specically where it has appeared that a trust has been employed to limit

the rights of third parties. is 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 aairs 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.

Keywords: trust, matrimonial property, fraud, spouse, property rights

I INTRODUCTION

e law must be constructed and construed to advance the common

interests of society. us, the law is a vehicle for creating societal har-

mony, limiting inequality, and protecting rights. As interpreters of the

law, courts in a constitutional dispensation must not only interpret the

law, but must also ensure that social and political rights are protected.

is creates a dual task for the courts, which involves the interpretation

(2021) 33 SA Merc LJ 89

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https://doi.org/10.47348/SAMLJ/v33/i1a4

90 (2021) 33 SA MERC LJ

and protection of constitutional rights. Consequently, when the courts

construe any law, they must do so with the main purpose of vindicating

rights.1 is is a constitutional mandate that can be neither denied nor

avoided.2 Every rule of law must work in harmony with the spirit of the

Constitution, otherwise the rule must be revised or struck down.3

In recent years, the task of the courts in protecting rights arising from

the conclusion of a marriage has been made dicult through a strict

interpretation of the Divorce Act 70 of 1979. It is common cause that

the conclusion of a marriage, whether in community of property or out

of community of property, results in certain consequences.4 Various

rights and responsibilities accompany marriages — the duty to support,

parental responsibilities and rights, property rights, etc. e Matrimo-

nial Property Act 88 of 1984 aords spouses the right to approach a

court to seek the protection of these rights. It would not be consistent

with the constitutional goal of achieving equality if a party were able to

create avenues for alienating assets simply to prevent the other party

to a marriage from claiming a portion thereof when the marriage is

terminated.5

e use of trusts to limit or defeat the right to property has recently

proved to be problematic. A trust can be used to hide property that

would otherwise form part of the joint estate. e South African courts

have been approached to determine whether a trust was used to limit

the right to property in marriage.6 e courts generally determine

whether the trust was used for the purpose for which it was created,

or whether it was used as an alter ego of one of the spouses to a mar-

riage.7 e right to property can be acquired through marriage, and

this right should be constitutionally protected. It is quite strange that

in a constitutional democracy that seeks to promote and protect rights,

the issue of enforcement of rights does not enter the picture when the

court construes the law. We argue that the courts’ approach to such mat-

ters should not only focus on evidential facts, but must also focus on

constitutional and property law. e courts must determine whether

the limitation of the right to property is acceptable in a constitutional

1 Sections 7(2) and 8(1) of the Constitution of South Africa, 1996.

2 Section 2 of the Constitution of South Africa, 1996.

3 Section 39 of the Constitution of South Africa, 1996.

4 De Jong & Pintens, ‘Default matrimonial property regimes and the principles of Euro-

pean family law — A European-South African comparison (Part 2)’ (2015) TSAR 551 at 552

and 557.

5 Heaton, ‘Family law’ (2014) Juta’s Quarterly Review of South African Law (3)(b) 2.1.

6 Jordaan v Jordaan 2001 (3) SA 288 (C); Van der Merwe v Van der Merwe 2010 (5) SA 555

(SCA) and WT v KT 2015 (3) SA 574 (SCA).

7 Badenhorst v Badenhorst 2006 (2) All SA 363 (SCA).

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