Your browser does not support JavaScript! Trusts and Close Corporations in Divorce Proceedings: Fraudulent, Alter Ego or Authentic - Divorce, Family and Commercial Law Attorneys

Trusts and Close Corporations in Divorce Proceedings: Fraudulent, Alter Ego or Authentic

HOME / Trusts and Close Corporations in Divorce Proceedings: Fraudulent, Alter Ego or Authentic

Trusts and Close Corporations in Divorce Proceedings: Fraudulent, Alter Ego or Authentic

Trusts and Close Corporations in Divorce Proceedings: Fraudulent, Alter Ego or Authentic

Case Name:            MJK and Others v IIK

Citation:                 2023 (2) SA 158 (SCA)

Court:                    Supreme Court of Appeal (SCA)

The MJK and Others v IIK case revolves around a disagreement between two parties – the Appellant and the Respondent.

The Respondent argues that the Appellant moved assets into trusts and a business entity with dishonest intentions to avoid responsibilities related to the increase in his estate.

The High Court’s decision to go beyond the initial issues is a key concern, leading to discussions on the limits of legal judgment.

The case explores the complexities of divorce law, trusts, and how the legal system scrutinizes such situations.

Legal Issues Raised in The Case 

This case deals with two primary legal issues.

Firstly, it is the challenge faced by the High Court’s jurisdiction concerning foreign trusts.

The Appellant questions the court’s authority in matters related to trusts formed under foreign laws, emphasising the necessity for clarity in applying South African law to these entities.

Secondly, the legal focus shifts to the Respondent’s claim that the Appellant, through trusts and a close corporation, fraudulently transferred assets to evade responsibilities tied to the accrual of his estate.

This raises questions about the court’s interpretation of pleadings, jurisdictional boundaries, and the legitimacy of the trusts for estate planning, prompting an exploration of the criteria for going behind the trust form in divorce proceedings.

Applicable Legislation 

The application of the Recognition of Foreign Marriages and the Children’s Act 38 of 2005[1] were invoked to address issues related to the validity and recognition of a foreign marriage, as well as matters concerning the welfare and best interests of the minor child.

The following Acts:

Divorce Act 70 of 1979[2] 

Matrimonial Property Act 88 of 1984[3]

Trust Property Control Act 57 of 1988[4]

were central to the legal arguments.

The Divorce Act would govern the dissolution of the marriage and related matters.

The Matrimonial Property Act could influence the division of assets.

The Trust Property Control Act would be relevant to discussions about the trusts established and their implications in the context of marital accrual.

Referencing these acts was crucial as they provided the legal framework for addressing complex issues related to foreign marriages, divorce, matrimonial property, and trust structures.

The Acts established the rules and principles guiding the court in resolving disputes, ensuring a fair and legally sound judgment that aligns with established family and trust laws. Their application was essential to bring clarity to the intricate legal aspects involved in the case.

Background of The Matter 

The legal dispute centres around a complex set of events and relationships. In chronological order, below is a detailed background:

Formation of Trusts and Close Corporation: The Appellant, Mr. K, established three trusts (Koens Besigheids Trust, Koens Familie Trust, and Bulhoek Trust) and a close corporation (Olivia Wildplaas CC) for estate planning purposes.

Marriage and Accrual System: Mr. K and the Respondent were married out of community of property with the accrual system.

This meant that each party maintained separate estates, but upon divorce, an accrual claim would arise for an equal division of the growth in their respective estates during the marriage.

Allegations of Asset Transfers: The Respondent claimed that Mr. K, through the trusts and the CC, fraudulently transferred assets to avoid his obligations related to the accrual of his estate, asserting that he exercised full control over these entities.

Pleading Disputes and High Court Intervention: Disputes arose over the interpretation of pleadings, with Mr. K challenging the High Court’s jurisdiction in matters concerning foreign trusts.

The court, however, addressed issues beyond the initial claims, leading to questions about the legitimacy of the claims.

Trusts as Alleged Alter Ego: The Respondent argued that the trusts and the CC were mere alter egos of Mr. K, contending that they existed in name only, established to prejudice her claims.

She further claimed to have contributed significantly to the growth of these entities.

Divorce Proceedings and Claim for Accrual: The legal battle extended to whether the trusts should be considered part of Mr. K’s estate for accrual calculation.

The court, relying on previous case law, was asked to determine whether the trusts were valid estate planning tools or a fraudulent attempt to conceal assets.

The relationship between the parties is based on their marriage and subsequent divorce; complicated by the establishment of trusts and a close corporation, and raising questions about the nature of these entities and their connection to Mr. K’s personal assets.

The legal dispute further delves into the allegations of fraudulent asset transfers, alter ego claims, and a fundamental disagreement over the interpretation of pleadings.

Issues to Be Determined 

Jurisdiction Over Foreign Trusts:

Issue: Whether or not the High Court has jurisdiction to intervene in a dispute involving trusts formed under foreign laws.

Significance: Establishes clarity on the application of South African law to foreign trusts, addressing jurisdictional boundaries in matters concerning these entities.

Relevance to Law: Pertains to the intersection of South African legal jurisdiction and foreign trusts, guiding future cases involving similar disputes.

Validity of Trusts and Asset Transfers   

Issue: The legitimacy of Mr. K’s establishment of trusts and alleged fraudulent transfers of assets through these trusts and a close corporation.

Significance: Determines whether the trusts were valid estate planning tools or used to evade obligations related to the accrual of Mr. K’s estate, setting a precedent for cases involving trust structures in divorce proceedings.

Relevance to Law: Addresses the separation of trust and personal assets, exploring the criteria for going behind the trust form in divorce cases.

Interpretation of Pleadings and Court’s Jurisdiction:

Issue: Disputes over the court’s interpretation of pleadings and its jurisdiction to adjudicate on issues not initially claimed.

Significance: Clarifies the boundaries of court intervention in interpreting pleadings, ensuring a fair and just adjudication based on the issues raised.

Relevance to Law: Explores the limits of the court’s authority in expanding the scope of a case beyond the initially presented claims, providing guidance for future legal proceedings.

Nature of Trusts as Alter Ego:

Issue: Whether the trusts and the close corporation are legitimately established entities or merely the alter ego of Mr. K.

Significance: Shapes the understanding of trusts in family and estate planning, addressing the criteria for considering these entities as alter egos in divorce proceedings.

Relevance to Law: Explores the balance between the legitimate use of trusts and the potential abuse of trust structures in matrimonial disputes.

These legal questions collectively shape the legal landscape by addressing jurisdictional nuances, validating the use of trusts, interpreting pleadings, and examining the nature of trust entities within the context of divorce and accrual claims.

Legal Arguments Presented 

Appellant’s Arguments:

Jurisdiction Challenge:

Argument: Appellant challenges the High Court’s jurisdiction over foreign trusts, emphasising the need for clarity on the application of South African law to such entities.

Strengths: Raises a fundamental question about the court’s authority in cases involving foreign trusts.

Weaknesses: Jurisdictional challenges may be subject to nuanced interpretations, and a clear legal precedent might be necessary.

Legitimacy of Trusts and Asset Transfers:

Argument: Appellant asserts that trusts were validly established for estate planning, disputing allegations of fraudulent transfers.

Strengths: Clear explanation of the purpose behind trust formation and legitimate estate planning.

Weaknesses: The burden of proving the absence of fraudulent intent can be challenging; evidence must convincingly establish the trusts’ genuine nature.

Respondent’s Arguments:

High Court’s Jurisdiction:

Argument: Respondent contends that the court has jurisdiction and calls attention to the importance of applying South African law to trusts formed abroad.

Strengths: Supports a broad interpretation of jurisdiction for effective legal oversight.

Weaknesses: Potential conflict between South African law and foreign trust principles might complicate jurisdictional arguments.

Fraudulent Asset Transfers:

Argument: Respondent claims that Appellant fraudulently transferred assets to trusts, questioning the legitimacy of these entities.

Strengths: Raises suspicion about the true purpose of trust formation.

Weaknesses: Requires substantial evidence to prove fraudulent intent, and credibility of witnesses may be a factor.


Jurisdictional Challenge: The Appellant’s challenge is principled but may face complexities in reconciling foreign trust laws with South African jurisdiction. Strength lies in addressing fundamental legal principles, but weaknesses may emerge in practical application.

Legitimacy of Trusts: The Appellant’s argument appears strong, supported by a clear explanation of estate planning objectives. However, the challenge is to convincingly demonstrate the absence of fraudulent intent behind asset transfers.

High Court’s Jurisdiction: The Respondent’s argument supports legal oversight but might face challenges in aligning conflicting legal principles. Strength lies in advocating for a broad interpretation of jurisdiction, while potential weaknesses may arise in harmonising foreign laws.

Fraudulent Asset Transfers: The Respondent’s claim raises suspicions but requires robust evidence. Strength lies in questioning the legitimacy of asset transfers, while weaknesses may emerge in establishing clear fraudulent intent.

Court’s Decision and Order:

The court’s judgment involved upholding the appeal and modifying parts of the High Court order. The Plaintiff’s claim, seeking to use the assets of trusts and a close corporation to calculate the accrual of the Defendant’s estate, was dismissed with costs.

The court found that the High Court’s conclusion, suggesting fraudulent intent in transferring assets to trusts, was incorrect. It highlighted that the evidence didn’t support the contention that the trusts were established fraudulently.

The court also emphasised that going behind the trust form is a remedy typically granted when it’s used dishonestly or unconscionably to avoid obligations, which wasn’t the case here.

As a result, the court replaced specific paragraphs in the order, ultimately dismissing the Plaintiff’s claim with costs.

Implications of The Judgment for Similar Matters 

This case sets a precedent emphasising the importance of scrutinising the evidence and legal principles when dealing with disputes involving trusts and the accrual system in divorce cases.

The judgment underscores that merely establishing trusts for estate planning purposes, without evidence of fraudulent intent or abuse, should not lead to piercing the trust veil.

In future cases, this precedent may encourage parties to divorce proceedings involving trusts, to focus on the specific evidence demonstrating control, purpose, and potential abuse of the trust structure.

The decision reinforces the idea that courts should not automatically go behind the trust form unless there is clear evidence of dishonest or unconscionable use.

Moreover, this case may influence legal practitioners in the relevant field to carefully frame their arguments and evidence, aligning them with established legal principles.

It accentuates the need for a thorough examination of the nature and purpose of trusts in divorce matters, contributing to the clarity and consistency of legal decisions in similar cases.

[1] Children’s Act 38 of 2005

[2] Divorce Act 70 of 1979

[3] Matrimonial Property Act 88 of 1984

[4] Trust Property Control Act 57 of 1988

Read More:

Divorce and Trusts: A Guide to Asset Protection

Analysing the Legal Aspects of an Accrual Claim

Do I need an International Will

Driving divorce: Navigating trusts as a vehicle for matrimonial asset division

Estate Planning and Wills Across Borders: Sometimes a Quagmire in the Making

MJK and Others v IIK

Book a Consultation

    Send me a copy