Trust Maanda
Legal Position
A FAMILY trust is meant to protect wealth for future generations.
But it must not be used to dishonestly hide assets from just claims.
In Tainganhamo Chisango v Chisango (nee Mudzana) and The Trustees For The Time Being of Unnah Chisango Trust and Registrar of Deeds N.O. the High Court held that a trust cannot be used as a hiding place to defeat a spouse’s claim on divorce.
A spouse has a right to sell a house forming part of the matrimonial estate, but registered in his or her sole name without the other spouse’s consent.
If a sale is intended to defeat the other spouse’s just rights, the court may intervene to stop the injustice. The spouse seeking court’s interference in the disposal must show the lack of good faith in the disposal and that the sale was a sham or simply intended to defeat his/her just cause.
A wife cannot bar her husband from selling assets registered in his name more so when no divorce action requiring the distribution of those assets is instituted. However, court can intervene where a sale is not genuine but is meant to defeat the wife’s cause.
There must be some evidence that he (husband) is disposing the asset in some way attempting to defeat her just rights. The court must be satisfied that the disposition was made with the intention of defeating the spouse’s claim for relief.
A trust cannot be formed in order for it to take transfer of a matrimonial property if the transfer is to defeat a claim by the other spouse who has a right to division of the property on divorce. This was the case in the Chisango case.
The judgment in Chisango is a warning to anyone who thinks that putting matrimonial property into a trust makes it untouchable.
The house in the Chisango case was registered in the name of the wife. The marriage broke down, and in 2020, the wife gave her husband a divorce token known as gupuro, signalling the end of the customary union.
Then came the trust.
On June 24, 2021, she registered her trust in which the husband was not record as a trustee or beneficiary.
Three years later, in 2024, she transferred the Marlborough house into that trust under Deed of Transfer.
Her husband only discovered the transfer when his lawyers filed divorce summons on August 29, 2024, and tried to serve her. While evading service, the wife rushed to the Deeds Office and completed the transfer.
The husband went to court to seek an order cancelling the title deed for title to revert to her name in order for it to be considered for sharing in the divorce case.
The wife argued that the transfer was not done to hide property liable for division on divorce. She gave an innocent explanation.
The court applied the well-established principle that while a spouse can deal with property registered in their own name, the court will intervene where the disposition is done to defeat the other spouse’s claim.
The timing of the transfer betrayed an intention to defeat the husband’s claim. The only reasonable inference was that she registered a sham trust clearly intended to defeat the plaintiff’s claim when divorce became imminent.
The judge concluded that such conduct was a clear indication of deliberate action, undertaken with fraudulent intent. The court cancelled Deed of Transfer in favour of the Trust, ordered the Registrar of Deeds to endorse the cancellation, and revived the prior deed in the wife’s name.
It means he could now claim his share under Section 7 of the Matrimonial Causes Act [Chapter 5:13], which allows the court to make a just and equitable distribution of matrimonial property on divorce.
A trust is not a shield for fraud. Courts have repeatedly said they will pierce the veil and look at who is the real owner. Chisango follows that line. Timing tells the story. A trust registered years before a divorce, with genuine independent trustees and real administration, may survive. A trust registered just as divorce becomes imminent, followed by a hurried transfer while evading service, will invite suspicion.
The case is a reminder not to transfer, hide, or dissipate matrimonial property once divorce is on the horizon. The court can, and will, reverse it.
For those genuinely planning their estates, the lesson is the opposite: register a trust early, run it properly, appoint independent trustees, and do not use it as a weapon in a matrimonial war.
Trust Maanda is a legal practitioner and a partner at Maunga Maanda And Associates. He writes in his personal capacity. He can be contacted on +263772432646
Court can disregard a trust in certain circumstances
