Family Trusts and Divorce in Zimbabwe

With the increase of divorce rates in Zimbabwe one of the emerging questions that couples have to grapple with is whether trust assets form part of the estate during divorce. The South African Supreme Court of Appeal in Badenhorst v Badenhorst 2006 (2) SA 255 (SCA) held that:

“[t]o succeed in a claim that trust assets be included in the estate of one of the parties to a marriage there needs to be evidence that such party controlled the trust and but for the trust would have acquired and owned the assets in his own name.”

In terms of the law in Zimbabwe property which is owned by a Family Trust seizes to be owned by the individuals and becomes subject to the control and administration of the Trustees for the benefit of the beneficiaries.

In light of the decisions in Wutawunashe v Wutawunashe HH 802-18; Chikwature v Musunga HH 57-24 and Jokonya v Jokonya HH 782-25 movable and immovable property which is registered in the name of a Family Trust in Zimbabwe is not subject to be distributed upon divorce in terms of the Matrimonial Causes Act [Chapter 5:13] in Zimbabwe.