Shan Hulbert, sales manager at Knight FrankResidential SA, says this very issue was recently ruled on in court.
In a recent case highlighted in a Bisset Boehmke McBlain law update, a couple married in community of property divorced and the wife was claiming a 50% share of their matrimonial home, with the justification that it was part of their joint estate.
The husband said that the house belonged to the family’s discretionary trust, of which he and his brother were the trustees and the children the beneficiaries.
While the High Court agreed that the house fell into the couple’s joint estate, Hulbert says the Supreme Court of Appeals found differently. It held that the wife had no claim on the trust because she was not named as a transacting party, nor a beneficiary.
Hulbert says that while putting a property in a trust is often a good idea for estate planning purposes, particularly when there are children involved, the finer details and intricacies of what happens in a case of a split do need to be discussed when forming the trust.
If couples are married in community of property, Hulbert says the usual case would be to split everything 50/50, but if the family home is to be put in a trust’s name, the wife should insist that she benefits in some way from the trust, to protect herself for future events.
Hulbert says the better option would be to marry with an ante-nuptial contract so that either spouse would have a fair share in the assets if there were to be a divorce.
Buying property as a couple should be discussed carefully and both parties should be able to gain out of the transaction later, so this needs to be put in writing as early as possible, to avoid stressful complications later, says Hulbert.