We agree with the majority that the means by which the court awarded title, i.e., by imposing an equitable lien, not only for the amount of plaintiff’s down payment but also for arrears which defendant owed for mortgage payments, taxes, insurance and utilities, was improper and that the case must be remitted. However, we view the circumstances here as supporting imposition of a constructive trust on the marital residence for the benefit of plaintiff. 11 The facts are these. Approximately five months after the parties were married, plaintiff sold the home in which she had been living with her three children from a previous marriage, and used the proceeds ($18,682) to make a down payment on the subject premises, which is held by the parties as tenants by the entirety. For a brief period, between April, 1978 when the residence was purchased and January, 1980 when the parties separated, mortgage payments were paid out of joint funds. However, from February, 1980 through the date of trial in March, 1983, plaintiff was solely responsible for mortgage payments totaling $18,900, taxes of $6,900 and insurance of $1,100. The court found that the current value of the marital residence was $84,600, that the principal owed as of March, 1983 was $47,881 and that the equity in the marital residence was $36,719.11 In view of the fact that plaintiff has personally contributed over $37,000 to the purchase and maintenance of the residence and that defendant, although under court order to make mortgage, tax, insurance and utility payments, is in arrears from January, 1980, defendant would be unjustly enriched if he were permitted to retain a one-half beneficial interest in the residence. Since defendant has made only a minimal contribution toward the equity in the residence, we believe the proper remedy would be to impose a constructive trust on defendant’s one-half interest and compel transfer of title to plaintiff. H Of the four essential elements which must be found prior to affording such a remedy, i.e., (1) a confidential or fiduciary relationship, (2) a promise or agreement, express or implied, (3) a transfer in reliance upon said agreement, and (4) unjust enrichment (Sharp v Kosmalski, 40 NY2d 119, 121), the only elements which are disputed here are the existence of a promise and transfer in reliance thereon. It has been held, however, under similar circumstances, that because of the confidential nature of the marital relationship “no such express agreement or transfer could be expected or found” and, hence, that a promise and reliance may be implied from the nature of the relationship (Scull v Scull, 94 AD2d 29, 37, app dsmd 60 NY2d 586). Moreover, the Court of Appeals has held that the four factors posited in Sharp v Kosmalski (supra, p 121) are not to be applied rigidly inasmuch as the doctrine of constructive trust is intended to be a flexible device, the application of which “is limited only by the inventiveness of men who find new ways to enrich themselves unjustly by grasping what should not belong to them” (Latham v Father Divine, 299 NY 22, 27, cited in Simonds v Simonds, 45 NY2d 233, 241). (Appeal from judgment of Supreme Court, Monroe County, Bergin, J. — divorce.) Present — Hancock, Jr., J. P., Denman, Boomer, Green and Moule, JJ.