In a Johannesburg courtroom last week, a judge examined a family trust deed while a wealthy couple waited for the verdict on their divorce. The scene illustrates a growing risk for affluent South Africans: the government’s push to streamline marriage laws is changing how assets are divided when a marriage ends.
The reforms centre on the accrual system, a legal framework that splits the increase in each spouse’s net assets during the marriage. New court guidance now requires a thorough accounting of assets that have been moved into trusts, ensuring those holdings are included in the accrual calculation. For families that have built wealth over generations, this means that a poorly drafted trust could lose its protective edge.
Statistics South Africa’s latest Marriages and Divorces report shows divorces rose by 8.9% in 2024. The rise in break-ups adds urgency to the need for robust wealth-preservation strategies, especially for high-net-worth (HNW) and ultra-high-net-worth (UHNW) individuals.
“As divorce and family laws evolve, affluent families need to prioritise the protection of their wealth by putting guardrails in place in terms of their assets,” said Kirsten Smit, advisory partner at Citadel. Smit’s comments are a company statement and reflect Citadel’s view of the legal landscape.
Under the accrual system, each spouse’s net increase in wealth from the start of the marriage to its end is pooled and then split equally, unless an Antenuptial Contract (ANC) says otherwise. Courts are now scrutinising trusts that were set up during a marriage to reduce the accrual pool. If a trust holds assets that should be part of the accrual, the court can order those assets to be counted, potentially increasing the division of wealth.
Interim relief measures also give a spouse the right to apply for temporary maintenance, child-related relief or a contribution towards legal costs while divorce proceedings are ongoing. Smit noted that these measures can make maintenance expectations difficult to manage and must be applied with care.
For families looking to shield generational wealth, a well-structured ANC is the most effective tool. An ANC can specify whether the accrual system applies to assets brought into the marriage and can expressly exclude inheritances from future accrual claims. “Under South African law, inheritances are automatically protected and kept separate from your spouse, but the exact mechanism depends on the terms of the ANC you choose,” Smit explained.
Trusts need more than a good name
Citadel’s Smit warned that the value of a family trust depends on its initial design and ongoing oversight. Many affluent individuals overlook the need for a clear trust deed that can adapt to legislative changes. She recommends independent trustees who understand family dynamics and can adjust guardrails as needed. Careful beneficiary designation and succession planning are also essential.
Another common oversight is allowing financial structures to become overly fragmented. Complexity can create hidden risks and make it harder to achieve efficiency. “People tend to think that complexity is a good thing, but when you create more elegant, manageable solutions, you are truly adding value, transparency and fairness to everyone’s lives,” Smit said.
The bottom line for wealthy South Africans is clear: proactive planning and regular reviews of marriage contracts, trusts and other wealth-preservation tools are now non-negotiable. As courts tighten the application of the accrual system, families that fail to update their legal frameworks may face unexpected asset division in future divorces.
Why courts look through a trust rather than at it
The scrutiny described here turns on a distinction that defeats a lot of otherwise careful planning: the difference between owning an asset and controlling it. A trust is meant to hold assets separately from the people who benefit from them, and that separation is what gives a trust its protective effect. The separation has to be genuine. Where the person who set the trust up still decides what it buys, what it sells and what it pays out, a court can find that the trust exists on paper while the control never actually moved.
That finding is what allows assets inside a trust to be pulled back into an accrual calculation. The lesson is not that trusts stop working, it is that a trust operated as a private account under another name was never doing the job its owner believed it was doing. This is also why independent trustees matter more than they appear to: a trustee willing to disagree is evidence that the separation is real.
The documents most people sign once and never read again
An antenuptial contract and a trust deed share an awkward quality. Both are signed at a moment when the circumstances they are designed for feel remote, and both are then filed away for decades while those circumstances change completely. A contract drafted around a salary and a first home is still the governing document when the same couple owns a business, holds assets in more than one country and has children from more than one marriage.
Nothing about that is unusual and none of it is the drafter’s fault. It is the predictable result of a document written once and a life that keeps moving. The practical response is a scheduled review rather than a reactive one, triggered by the events that genuinely change the picture: selling a business, receiving an inheritance, moving assets offshore, or a change in the law of the kind described here.
