Your Home Is In A Family Trust: Is It Safe On Divorce?
Your Home Is In A Family Trust: Is It Safe On Divorce?
Equity looks to the substance of a matter, not merely to its form.
Many Zimbabwean families hold their homes, farms and other valuable assets in family trusts. The reasons are usually sound: protecting property for the next generation, keeping assets out of reach of business creditors, and orderly succession planning. But a question we are asked often is this. If a property sits in a family trust, is it automatically beyond the reach of a spouse when a marriage ends? The High Court’s recent decision in Mugabe v Mugabe [2026] ZWHHC 370 gives a clear and practical answer; however, it is not a simple yes or no. It depends entirely on how the trust was set up and how it was used.
First, what is a family trust?
A family trust is a legal arrangement through which property ceases to be owned by any individual personally. The property is transferred to trustees, who hold and administer it for a designated group of persons, known as the beneficiaries, who are commonly the founder's children or wider family. Because the property vests in the trust rather than in any one person, it is ordinarily kept distinct from that person's personal affairs. That separation is the principal reason families make use of trusts, and in the majority of cases the law gives effect to it. That separation, however, holds only for so long as the trust is conducted as a genuine and independent arrangement. Where a trust exists in name alone, and one spouse in truth administers it as an extension of his or her own affairs in order to place property beyond the reach of the other, a court is entitled to look behind it. The proper answer to the question of whether a home is protected simply because it is held in a trust is therefore this: a genuine trust will ordinarily be respected, whereas a trust used as a mere device will not.
A tale of two trusts
In Mugabe v Mugabe, the couple married customarily in 2006, solemnised their marriage in 2010, and had three children. When the marriage broke down, the central dispute was what counted as "assets of the parties" that could be shared out under the Matrimonial Causes Act. Two family trusts were brought into question. The first was the Vengai Mugabe Trust. The husband said it owned two properties he had acquired after the couple separated but before the divorce was finalised. The trust held a house at No. 6 Cockington Road, Mandara and a property at Mademolle in South Africa. His argument was straightforward. These belong to the trust, not to the couple or himself, so they cannot be shared. The second was the Fontaine Family Trust, which had owned a property in Strathaven since 2020. Here, the spouses were the trustees, and they and their children were the beneficiaries.
What the court decided
Muchawa J drew a sharp line between the two trusts. On the Vengai Mugabe Trust, the court held that putting the label "trust property" on something does not automatically place it out of a divorcing spouse's reach. Courts already do this with companies: where a company is really just a spouse's alter ego, a court can look past it and treat the company's assets as the spouse's own. The same logic, the court said, applies to trusts. A court can see through a trust that is really being used to hide family property or to cheat a husband or wife out oftheir fair share[1]. On that basis, both the Mandara and Mademolle properties were treated as assets of the couple, available to be shared. The Fontaine Family Trust was treated very differently. The court said the "pretend trust" reasoning did not apply here, because of when the property was bought and what the couple had genuinely intended. This was a real family trust, and the court accepted it as the true owner of the Strathaven property. There was no reason to look behind it. The court also pointed out that the children were among the people the trust was meant to benefit, and they had not been made part of the court case. For all these reasons, the Strathaven property was not treated as an asset of the couple.
The three questions the court will ask
This case is useful because it tells us what a court looks at when deciding whether property in a trust can be shared on divorce:
When was the trust created? A trust set up long before any marital trouble looks very different from one created to move assets out of reach.
Where did the money come from? The source of the funds used to buy the property matters.
How were the trust and the property used during the marriage? Genuine trust administration looks different from a spouse quietly running the trust as an extension of themselves.
What this means for you
Mugabe v Mugabe does not say that assets in a family trust are automatically up for grabs on divorce. Nor does it say they are automatically safe. The lesson is that Zimbabwean courts will look at the reality, not the label:
A genuine family trust will be respected. If the trust was properly created, properly funded and properly administered as a separate entity, its assets are unlikely to be treated as matrimonial property.
A trust used as a disguise will be seen through. Where a trust is really a device to hide assets or defeat a spouse's claim, the court can and will look behind it.
If you are a trustee, run the trust as a trust. Keep its affairs separate from your own, fund it honestly, keep proper records, and make decisions in the interests of the beneficiaries. This is your best protection.
Make sure the right people are part of the case. Where a home is held in a trust, the people who benefit from it, often the children, have an interest a court cannot ignore. If they are left out of the case, the whole outcome can be put at risk.
Trusts remain one of the most effective tools for protecting and passing on family wealth, but only if they are set up and managed correctly. If you are thinking of placing property in a trust, are already a trustee, or are facing a divorce where trust assets are in issue, it is wise to take proper legal advice before taking any step.
This article is provided for general information and is not a substitute for professional legal advice. For advice on your specific circumstances, please consult your legal counsel for professional services.
[1]: The stratagem example referred to on this point was a finding of the High Court in Mutanga v Mutanga, which the Supreme Court set aside on appeal in SC 85/22 on the ground that the trustees had not been joined to the proceedings. The Supreme Court did not decide whether the trust could be looked behind.