In short: In S v S and Others (opens in a new tab) ([2026] ZANCHC 86), decided on 5 October 2026, a wife asked the court to join a family trust's trustees and beneficiaries to her divorce. She wanted the trust ended and its assets shared equally. The High Court dismissed her application, for two reasons. She had not joined three of the couple's children, who are also beneficiaries. And a claim to end a trust is a different legal question from a divorce. The court didn't decide whether her trust claim was right. It decided she had brought it the wrong way.
Why this case matters
Many South African families hold their farm, home or business in a family trust. When a marriage ends, one spouse often feels that the trust is "really" the other spouse's property. This judgment shows that you can't simply add the trust to your divorce papers and expect the court to divide it.
The facts
• The couple married in January 1995, out of community of property with the accrual system. They have six children.
• The husband's father set up a discretionary family trust in 2000. The husband is one of three trustees. Both spouses and their children are capital and income beneficiaries.
• During the marriage, the wife transferred a farm she had inherited from her late father into the trust. She said she did so because her husband assured her it was estate planning that would benefit the family.
• She said her husband controls the trust and treats its assets as his own. She pointed to missing trustee minutes, a large drop in the rent paid to the trust, and distributions that favoured him.
• Her divorce summons, issued in 2020, claimed no relief against the trust. In December 2023 she applied to join the trustees, three adult daughters and the Master of the High Court to the divorce. She planned to amend her claim afterwards to ask that the trust be terminated under section 13 of the Trust Property Control Act and its assets divided equally.
What the court decided
The husband and trustees raised four preliminary objections. The court decided the case on these alone.
1. Was she entitled to bring the claim at all? Yes. As a capital and income beneficiary, she had enough interest in the trust property to ask for relief under section 13.
2. Were all the necessary people before the court? No, and this was fatal. Three of the children (two minors and a son who had since turned 18) are also beneficiaries. Ending the trust would directly affect them, so they had to be joined. Because both parents had competing interests, the children would also need independent representation, possibly through a curator ad litem.
3. Did the bank holding the bond have to be joined? No. The bank's bond over the trust property, about R32 million, was not affected by the relief she wanted.
4. Was the trust claim close enough to the divorce to be heard together? No, and this was also fatal. The rules of court allow parties to be joined to a case only where substantially the same questions of law or fact arise. A divorce is decided under the Divorce Act and the Matrimonial Property Act. A section 13 claim asks what the founder of the trust intended and whether events have defeated that intention. Those are different questions. The court also noted that trust property doesn't form part of the trustees' personal estates.
The application was dismissed with costs on scale C. The court didn't decide whether the trust should be ended.
The point that is easy to miss
The trustees conceded that the outcome might have been different if she had argued that the trust was her husband's alter ego, or asked for trust assets to be counted in the accrual calculation. Those arguments are about the spouses' estates, so they overlap with the divorce. A claim to terminate the trust is about the trust itself. How you frame the claim decides where, and against whom, it must be brought.
The court also pointed out that the Trust Property Control Act has its own remedies. Trustees owe a duty of care (section 9), must account to the Master, who can order an investigation (section 16), and anyone aggrieved by a Master's decision can go to court (section 23).
Practical lessons if you are divorcing and a trust is involved
• Decide early what you want from the trust. Alter ego and accrual arguments belong in the divorce. Ending or varying the trust may need a separate application.
• Identify every beneficiary, including children and grandchildren. Anyone whose interest is directly affected must be joined.
• Plan for minor children to be separately represented if the parents' interests conflict.
• Bring the trust claim in your first papers. In this case, a trust claim raised three years into the divorce cost time and a costs order.
Practical lessons if you are setting up or running a family trust
• Think carefully before transferring an inheritance into a trust. Once it is in the trust, it is no longer yours, even if your spouse is a trustee.
• Keep proper trustee minutes and account to the Master. Missing minutes and one-sided distributions are exactly what an unhappy beneficiary will point to.
• Read your trust deed. In this case the deed allowed the husband to decide in his will how trust assets would be distributed, and the wife said she never knew this.
Frequently asked questions
Is a family trust part of my divorce estate? Generally not. Trust assets belong to the trust, not to the spouses or the trustees. A court may look through a trust if one spouse used it as their alter ego, but that has to be properly pleaded and proved.
Can a beneficiary ask a court to end a trust? Section 13 of the Trust Property Control Act allows a court to vary or terminate a trust where its provisions have consequences the founder didn't contemplate. In this case the court accepted that the wife, as a beneficiary, could bring that claim. It just couldn't be added to the divorce in the way she tried.
Do my children have to be involved? If they are beneficiaries and the relief would affect their interests, yes. Minors may need an independent representative.
How Lawvero can help
A well-drafted trust deed and properly kept trust records prevent most of these disputes. Lawvero offers trust registration, annual trust administration from R495 per month, and unopposed divorce documents from R4 450, all at fixed prices quoted upfront. To have your trust reviewed before it becomes a court case, WhatsApp us on 065 764 3430 or email office@lawvero.co.za.
Lawvero provides document preparation services and does not provide legal advice. This article is a general summary of a court judgment and is not advice on your specific situation.